HKSAR v. SHAO HUNG

HCCC 229/2018

[2019] HKCFI 512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 229 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

On 23 July 2018, Shao Hung came before a magistrate who was hearing committal proceedings in relation to this case. On that date Mr Shao pleaded guilty, admitted a set of facts and the case was committed for sentence to the High Court. He is represented by Ms Money Lo, Barrister-at-Law.

This case arises out of events which occurred on 19 October 2017. On that day, the victim in this case, a 26-year-old female, took her young son to school. They lived in premises in Pak Tai Street in Kowloon City. As they were going down the stairs, they saw Mr Shao. For no reason at all, Mr Shao took hold of the victim’s son’s hand and said he would like to take him to school. The victim’s son shook his head and the accused walked away. That event was in the morning.

In the afternoon, as she left home, the victim noticed Mr Shao as she closed the door to her residence. Mr Shao asked the victim if she was going to pick up her son. She answered yes. Mr Shao then walked in front of the victim as they descended the stairs.

Pausing there, the victim lives two floors below Mr Shao in the same building. Mr Shao had no obvious business being on the same floor as the residence of the victim.

The accused says that he was at the time wandering aimlessly up and down the stairs of the building. An inference is opened that he was lying in wait for the victim. I have resisted drawing that inference because I cannot say, in light of the reasons given by the accused for his presence on that floor, that the inference is the only reasonable inference.

When the victim reached the 3rd floor of the building, Mr Shao, who had been walking in front of her, asked her to pass him. The victim did this but suddenly Mr Shao locked her neck from behind without saying anything. She struggled and started to shout for help. Mr Shao locked her neck even harder and caused the victim great pain to her throat. He then took out a knife from the pocket of his shorts and he tried to use the knife to stab the victim in the temple region of her head. Not surprisingly, the victim struggled and was moving around. She was, however, overpowered. In the course of this part of the struggle, Mr Shao stabbed in the area next to the right eye of the victim. As a result, her vision became blurred. He continued to aim the knife at her face and stabbed her face all over which became completely bloodied.

By this stage, the victim was squatting on the floor. Mr Shao continued to use the knife to stab at her stomach. She used her hands to block the knife. The victim begged him to let her go and she said she still had a son to take care of. Notwithstanding this, Mr Shao continued to stab at her stomach, right thigh and left arm. There were many blows but the victim was unable to say how many. She thought Mr Shao was going to kill her. She had no idea what his intentions were and Mr Shao did not say anything to her throughout the process.

After a while, the victim perceived that Mr Shao had stopped. She tried to get away although she felt unsteady. He grabbed her arm and used the knife to cut her neck. The knife was pressed into the throat of the victim and moved left and right many times. The victim thought that Mr Shao was trying to cut her throat. She kept shouting for help but to no avail.

Mr Shao then used the knife to stab at further parts of the victim’s body including her hands and legs. She fell down the stairs and the rucksack she was carrying also fell. That rucksack contained her wallet which in turn contained her Hong Kong identity card, her Octopus Card, about $580 in cash, a bankcard and membership cards. Also in her rucksack were her mobile phone, phone charger, a plastic box, umbrella, a jacket and some plasters and some other cards and medical appointment documents and keys. That rucksack was eventually taken by the accused but it is not absolutely plain exactly when that taking took place.

The victim managed to get down to the 1st floor. She tripped and the next thing to happen was that Mr Shao wished to drag her into the fire escape. At this stage she noticed the knife did not appear to be there. However, the victim and Mr Shao continued to struggle and Mr Shao used both of his hands to pull her hair and hit the back and side of her head against the floor. She bit his finger with force. She ran to the ground floor and out of the building and a report was immediately made to the police.

The police inquiries revealed the identity of the accused. He was later visited in his apartment in the building where the crime took place. Mr Shao was then bloodstained in his hands. The victim’s wallet was found on the flat floor. It was wet and it appeared there had been signs of an attempt to wash away blood with water. There was a towel with bloodstains on it. Mr Shao was arrested and cautioned. He said in answer to the caution, “I originally intended to rob but carelessly stabbed the female once.”

A further search of the rooftop of the building in which the residence of Mr Shao was located, the police found the victim’s other property including a rucksack and her mobile phone. A 7-inch blade was recovered from the water tank on the rooftop.

The police took Mr Shao to the police station and he undertook a video-recorded interview. He agreed that he had taken the knife recovered by the police from the water tank to a nearby park to look for a target to rob. He did not find anyone but he saw the victim on his way home. He told police that he shouted at her “Freeze. Robbery!” Mr Shao admitted that he grabbed her neck from behind and that she had escaped and he chased after her and had accidentally stabbed her once. He told the police the victim had screamed for help and he was so scared that he stabbed at her waist once. He told the police that the victim struggled, he grabbed her hair, hit her head against the floor. He told police that he had injured his hands through the struggle and after she escaped, he had picked up the rucksack and ran to the rooftop and he disposed of the knife in the water tank. He took the victim’s purse out of the rucksack, leaving the rucksack on the rooftop.

The prosecution sought to tender two medical reports and a victim impact assessment. Ms Lo for the accused consented to the tender of the reports and the assessment. They are of immense help in the consideration of this case.

The victim was taken to hospital for treatment. She was found to be suffering multiple chop wounds including:

(1) a 4-centimetre wound to her right occiput, which is the area near the eye;

(2) a 2-centimetre wound to her left occiput;

(3) a 3-centimetre wound to her left forehead;

(4) a 3-centimetre wound at her left cheek;

(5) a 2-centimetre cut to her right volar wrist;

(6) a 1-centimetre cut at her right knee; and

(7) a 1-centimetre cut at her right abdominal wall.

The victim was admitted to the surgical department for treatment. There it was revealed she had a fracture to her forearm and an associated fracture of the left distal radius and scaphoid and her right thigh. Not surprisingly, the victim reported anxiety and flashbacks in relation to the assault event. During her stay in hospital she underwent surgery for the suturing of some of her wounds. She was given a slab for immobilisation of her distal radius fracture and tendon repair. The victim was discharged from hospital 12 days later and required outpatient follow-up. Following her discharge, the victim reported her physical well-being was improving and had occasional headaches and dizziness.

Not surprisingly, some of the damage done to the victim by these terrible and frightening events was not just physical but emotional and psychological. While the physical injuries eventually resolved themselves, the victim says that she suffers now from insomnia and nightmares and becomes easily frightened especially when walking on the street unaccompanied. She had become understandably self-conscious about her scars and as a result of this wore a mask when she needed to leave home. Overall, both the combination of fear and self-consciousness in social situations have resulted in her reduced participation in social events.

The victim sought psychiatric and psychological assistance. In the opinion of Ms Chu Lai-sin, a clinical psychologist, the victim is suffering from a significant emotional distress and psychological symptoms. A clinical diagnosis indicated that the victim was likely to be suffering from post-traumatic stress disorder. She was also very upset about the scarring on her face.

The victim positively identified Mr Shao at an identification parade. There were also DNA results linking Mr Shao to the robbery.

Mr Shao is aged 48. He was born in Fujian in the People’s Republic of China. He has a previous conviction for burglary in 2015 where he was sentenced to 18 months’ imprisonment by the District Court. Mr Shao received education up to Form 1 in secondary school. He has had various jobs throughout his life but he was unemployed at the time of his arrest. He said that he had previously been married and is now divorced and lived by himself in the premises where the robbery took place. He is one of four children in a family. Sadly, his father died last year. He has informed the court that he was under extreme financial pressure at the time of the robbery and that influenced his decision to commit the robbery.

I have received two letters in mitigation. One of those is from his sister which is a heartfelt letter revealing his difficult financial circumstances and expressing her belief in the remorse of her brother and that he is determined not to walk this path again. I have also received a letter from the accused himself who expresses in clear terms his remorse and his concern for the effects of his conduct on the victim. He reports in his letter that he has, while in custody for this crime, become a Christian and as a consequence of that, prays daily for the victim.

On any view, this was a frightening and violent and traumatic robbery. A female alone in a stairwell in a building was set upon by Mr Shao with a 7-inch knife. Serious injuries were inflicted. She was repeatedly stabbed and beaten, and leaving aside the extensive injuries which I have detailed, it is perhaps correct to say that the most significant injury of all has been psychological.

Robbery is an offence against the Theft Ordinance. The maximum penalty is imprisonment for life. That maximum reflects both the serious view that the community takes of robbery and also the wide range of circumstances in which robbery can take place. In Mo Kwong Sang v R [1981] HKLR 610, the Court of Appeal comprising Roberts CJ and Leonard and Li JJA considered how the courts should approach sentencing for robbery with a weapon other than a firearm. In that case, the Court of Appeal considered that, generally speaking, the starting point for analysis for robbery where a knife or other weapon other than a firearm was used was 5 years. The court then detailed a list of circumstances of aggravation and suggested possible sentencing approaches in the event of one or more of these circumstances occurring. One of the circumstances of aggravation identified by the court was physical violence. As the court observed:

“Armed robbery of this nature, which must cause terror to the victims as well as a loss of their possessions, has become increasingly common.”

Mo Kwong Sang v R (above) has been followed by the courts of Hong Kong ever since. The non-exhaustive list of matters of aggravation leaves open to the sentencing court a fair measure of discretion. Not the least reason for this is that the degrees of violence which might be visited on a victim can vary enormously. The consequences for the victim in this case were serious both in the physical sense and the psychological sense. It is clear that the victim carries both the physical and psychological scars of the robbery and, in my judgement, is likely to do so for a very long time. I am of the opinion that this is a very serious robbery of its type.

Property was taken and, more by luck than anything else, most of it appears to have been substantially recovered.

Members of this community have the right to walk in residential buildings and the streets of Hong Kong in safety. Their property must be respected. The clear message of Mo Kwong Sang v R (above) and the multitude of authorities which followed it is that the kinds of sentence which ought to be imposed in cases of this kind, through the deterrent nature of the sentence, reflect this imperative.

For all of these reasons, I cannot conceive of any lower starting point for the sentence in this case than 8 years.

Mr Shao, please stand up. Doing the best I can in the circumstances of this terrible robbery and taking into account you are entitled to a discount of one-third from the starting point I have just indicated and all the mitigation advanced on your behalf, trying to combine justice and mercy, the least sentence I can pass upon you is a sentence of 5 years’ imprisonment, and that is the order of the court.