HKSAR v. GUO RONG

DCCC 657/2021

[2022] HKDC 1101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 657 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is convicted of a charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212 (1^st charge), and a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210 (2^nd charge)  on his own plea and agreement to the Summary of Facts.

Facts

2.  PW1 is a sex worker working at Room C, Flat F, 2^nd Floor, No 99 Chung On Street, Tsuen Wan, New Territories.

3.  On 27 December 2020, after PW1 provided sex service to the defendant at the said location, PW1 asked for payment but the defendant refused.  An argument started.  The defendant pulled PW1’s hair with his left hand and punched her head with his right hand for about 10 times.  The defendant then tried to leave but his clothes were grabbed by PW1.  At the corridor outside the said room, the defendant again punched PW1’s head for about 10 times.

4.  Suddenly, the defendant pulled a gold necklace with a pendant off PW1’s neck and told PW1 to let him go before he would give her back the necklace with the pendant.  The defendant and PW1 scuffled, during which the defendant dropped the necklace with the pendant onto the floor and PW1 immediately stepped on them.  The defendant then pushed PW1’s leg away and picked up the necklace with the pendant.  He then forced his way out of the building while PW1 kept grabbing the defendant’s clothes.  When the defendant arrived at the street outside the ground floor of the building, he again punched PW1’s head for about 10 times.  The defendant eventually fled.

5.  The case was reported to police and police intercepted the defendant shortly afterwards.  The necklace with the pendant was recovered.  The defendant was arrested, and under caution, he admitted he robbed the necklace with the pendant of PW1 because he needed money.

6.  The defendant admitted under caution that he had visited PW1 for sex service and refused to pay because of disagreement on price.  He also started snatching the necklace with the pendant from PW1 with the intention to sell them for money, and hitting PW1 because she did not let him go.

7.  Medical examination revealed that PW1 sustained scalp haematoma and mild swelling at the base of right thumb.

Criminal Record

8.  The defendant has a clear record in Hong Kong.  He came to Hong Kong in November 2018 from the Mainland.

Mitigation

9.  The defendant is aged 39.  He arrived in Hong Kong in November 2018.  He was educated up to junior middle school level.  He is divorced with a son aged 14 and a daughter aged 12 who reside with him.  He later remarried and his wife resides in the Mainland.  He works as a construction worker earning about $30,000 per month and is sole breadwinner of the family.  He gives $10,000 per month to his parents and $10,000 per month to his ex-wife who took care of the children. 

10.  Defence counsel submitted that there are no sentencing  guidelines for this type of offences.  For Charge 1, he referred this court to the case of HKSAR v Yeung Ka Fan, HCMA 62/2004.  For Charge 2, he referred this court to the case of HKSAR v Ku Kwok Wai & Another, CACC 14/2012, and HKSAR v Chan Ngok Tak, DCCC 497/2019. 

11.  Defence counsel submitted that on the day in question, the defendant visited the victim for sexual services.  Initially, the victim was reluctant to provide service to him because he smelt strongly of alcohol, but eventually, she agreed to provide service for 20 minutes for $200 with or without ejaculation.  The defendant agreed but later, when he was unable to achieve ejaculation, he felt frustrated, gave her only $100 and a heated argument ensued.  As he was about to leave the room, the victim grabbed his shirt to prevent him from leaving and demanded full payment.  Scuffle ensued and the defendant grabbed her necklace. It was said that that was only opportunistic.

12.  It was also said that although the defendant told the police he needed the money, he was in fact not really in need of money as he had money with him at the time.

13.  Defence counsel submitted that the defendant committed the offence as he was under the influence of alcohol.  It was said that he has all along been a law-abiding citizen and this is the first time he has transgressed the law, and that the commission of both offences were not premeditated and he was only acting out of character.  It was also said the victim did not suffer serious injuries and the stolen property had been recovered.  It was also said the defendant is deeply remorseful and he fully co-operated with police upon arrest. 

14.  Defence counsel urged the court to give the defendant one-third sentencing discount by reason of his guilty plea, and the court should also consider the principle of totality and to consider ordering concurrent sentence on the 2 charges.

15.  Defence counsel also submitted to court 2 mitigation letters, one from the defendant’s son and the other from the defendant’s cousin. 

Discussion

2^nd Charge

16.  Any person who commits robbery shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for life. 

17.  In the case of HKSAR v Wu Yee Ki, CACC 513/2005, it was said that robbery by reason of its nature of offending demands an immediate custodial sentence.

18.  The defendant here is a man of clear record but he has only immigrated to Hong Kong in November 2018. 

19.  There is no sentencing guideline on the offence of unarmed robbery, as submitted by defence counsel.  There are, however, cases which suggest that in the absence of aggravating factor, sentencing starting point of 4 years’ imprisonment appears to be the maximum[1]. The circumstances under which an unarmed robbery was committed vary from a simple snatching to one coupled with serious assaults.

20.  In the case of Ku Kwok Wai, the court adopted a sentencing starting point of 3 years and 3 months’ imprisonment for the offence of robbery.  In that case, the robbery was a joint enterprise involving two persons but only one of the people involved was actually seen by the victim. The victim in that case was pushed to the ground and there was no substantial injury caused.

21.  The present case is an unarmed robbery which took place in a private place on a lone lady working in a one-woman brothel.  The defendant did not pay for the sex services rendered which resulted in a scuffle between the parties whereby the defendant assaulted the victim by pulling her hair and punched her head for about 20 times in the head (1^st charge).  He then even pulled the necklace from her neck, and when the necklace fell onto the ground and the victim got it back, he pushed the victim away and picked up the same.

22.  The circumstances under which the defendant committed the 2^nd charge offence was more serious than the Ku Kwok Wai case where the robbery took place in a public place and the extent of the violence incidental to the robbery was much less.  The persistence of the defendant in getting hold of the necklace was not opportunistic as stated by defence counsel.

23.  In HKSAR v Zhang Wei [2014] 6 HKC 599, acknowledging that targeting at one-woman brothel is an aggravating factor, the Court of Appeal adopted a sentencing starting point of 9 years’ imprisonment for sentencing.  In that case, the defendant used a syringe for the robbery, threatening that the syringe contained his blood and he had AIDS, and the defendant did stab the victim with the syringe.

24.  In the case of HKSAR v Tam Kwok Keung [2011] 1 HKLRD 141, Barnes J in paragraph 11 of the judgment says that:-

“The Court of Appeal has pointed out clearly that the work nature of sex workers makes them vulnerable targets for robbers. Thus the Courts will pass deterrent sentences to ensure that they are free from being bullied, see the case of HKSAR v Lai Kwok Fai, CACC 346/2008.”

25.  Considering the circumstances surrounding the commission of the offence, this court finds that the appropriate sentencing starting point would be one of 4 years and 3 months’ imprisonment. 

26.  This court has also considered fully all that was said by the defence counsel on the defendant’s behalf, including the mitigation letters from the defendant’s son and his cousin. 

27.  Defence counsel submitted that the defendant was under the influence of alcohol at the material times.  It was said, however, in the case of Attorney General v Lee Kui Man [1997] 1 HKLRD 576 that when alcohol has contributed to the commission of the offence, an accused cannot expect to turn to his advantage his self-induced intoxication.

28.  As said earlier, the defendant has only been in Hong Kong for 2 years at the time of the offence, his clear record therefore does not carry the same weight as if he had been in Hong Kong for the whole life. 

29.  This court finds that the most valid mitigating factor is the defendant’s guilty plea, for which he is entitled to full one-third sentencing discount.  The defendant is therefore sentenced to 34 months’ imprisonment for the 2^nd charge.

1^st Charge

30.  A person convicted of this offence upon indictment is liable to imprisonment for 3 years.  There is no sentencing tariff for this offence. 

31.  Considering the circumstances of the offence, the attack occurred within a one-woman brothel and the persistence of the defendant in the assaults adds to the seriousness of the attack.  However, looking at the medical report and the photos of the victim, the injury to the victim was not serious.  This court considers that whilst an immediate custodial sentence is appropriate for this offence, the sentencing starting point is 9 months’ imprisonment. 

32.  As the defendant has pleaded guilty, he is entitled to full one-third sentencing discount.  The defendant is therefore sentenced to 6 months’ imprisonment for the 1^st charge.

33.  Now, coming to the totality principle, the 2 offences were committed by the defendant on the same occasion, and they arose out of a series of events. In sentencing the defendant for the 2^nd charge, this court has already considered the violence inflicted on the victim in the commission of the 2^nd charge offence.  This court finds that the total sentence of 34 months’ imprisonment is just and proportionate to the overall culpability of the defendant in this case.

34.  Accordingly, the sentence of the 1^st charge is to run wholly concurrent to the sentence of the 2^nd charge.  The defendant is sentenced to 34 months’ imprisonment for the 2 offences.