HKSAR v. LI JING

DCCC 571/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 571 OF 2017

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

Summary of facts

2.  Defendant is a Mainland resident and a two-way permit holder, came to Hong Kong at around 12.30 noon on 3 May 2017.  At about 2.18 pm, when PW1 walked along inside the Metropolis Mall Car Park, Ground Floor, Hung Hom, Defendant approached her from behind and assaulted her head two to three times from behind with his recycle bag.  The estimated weight of the bag was 7 pounds and the pair of sport shoes weighted about 1.25 pounds, being the heaviest items inside the recycle bag.

3.  PW1 fell onto the ground and her iPhone, which was originally on her hand, also dropped onto the floor.  Before PW1 could respond, the Defendant hit her with his bag on her head from behind two to three more times.  PW1 ran away and shouted for help.  The Defendant picked up her iPhone and tried to flee from the scene. 

4.  PW2 and 3 heard PW1’s shouting, chased after the Defendant, and saw him throwing the iPhone onto the ground.  They eventually subdued the Defendant.  PW1 picked up the iPhone and called the police, and he was arrested.

5.  In a subsequent video record interview, the Defendant admitted that he saw PW1 holding an iPhone.  As he had no money, he wanted to rob her.  He hit her with his bag four to five times.  When PW1 fell onto the ground, he took the iPhone.  PW1 cried for help and two foreigners chased after him.  He was frightened and threw the iphone onto the floor.  He knew it was wrong to rob PW1.

Injury of PW1

6.  Bruising on her left hand and both of her knees; a 5-cm swelling on her occiput.

Previous conviction

7.  The Defendant had a clear record.

Mitigation

8.  He is now 40 years of age, single.  He was a factory worker before he came to Hong Kong.  This is the first time he visited Hong Kong on a two-way permit.  At the material time, he was carrying a recycle bag containing his personal belongings.  The defence said that he used it as an improvised weapon to hit the victim’s head from behind to steal her iPhone. The victim suffered minor injury as a result of the attack.  PW1 picked up her iPhone and she had no loss.  He had a mental history before he came to Hong Kong.

Reports

9.  In view of the mitigation advanced by the defence, two psychiatric reports and one psychologist’s report has been called for.  All the reports said that he had persecutory delusion against his father and strangers.  The psychologist said that he displayed psychotic symptoms, including persecutory delusions.  Both psychiatrists said that the Defendant was transferred from Lai Chi Kok to Siu Lam for assessment of his mental condition in late July this year.  He was impressed to suffer from paranoid schizophrenia.  His mental condition improved with medication treatment and has been stable since mid-August 2017.  He does not require inpatient treatment.

Sentence

10.  The victim has been assaulted on her head by the Defendant from behind and she had a swelling on her occiput.

11.  The defence recognise that:-

a) For unarmed robbery, the starting point is one of 4 years.

b) As to armed robbery, such as knife or other dangerous weapon, including firearms, the starting point is 5 years, Mo Kwong Sang v R [1981] HKLR 610.

c) In the head-bashing robbery categories in HKSAR v Ma Ping Wah [2000] 2 HKC 566, the Court of Appeal had established that, at paragraph 19:-

“...where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery, should not less than 8 years’ imprisonment”.

12.  The issue before this court is whether this is a head-bashing robbery.  The defence said that it was not, as the recycle bag was not a weapon as such.  The prosecution viewed otherwise, as the weight of the bag, which was originally said 15 pounds, was heavy enough to cause injury.

13.  Today, with a weighing machine in court, the actual weight is 7 pounds.  The shoes weighed 1.25 pounds, being the heaviest item in the bag.

14.  The summary of facts was also amended today, so the weight difference from the original 15 pounds to 7 pounds is 8 pounds.

15.  The defence refer me to HKSAR v Li Tak Ming, CACC 369/2010.  In that case, the appellant used a wooden plank to hit the victim on his head two to three times from behind.  This caused the victim the loss of consciousness and profuse bleeding, resulting in a 6-cm wound over his occiput scalp, which had to be sutured.  This is a case of head-bashing robbery.  The Court of Appeal in the judgment at paragraph 34 that:-

“However the gravamen of a head-bashing robbery is the delivery of a blow to the head with a weapon capable of causing injury to the brain to facilitate the robbery - other methods are entirely incidental.”

16.  In our present case, there was an attack at the back of the head of the victim for four to five times, as admitted by the Defendant. That was a deliberate attack on the victim with a view to rob her iPhone.

17.  The next two questions to decide by this court was whether: 

a) the recycle bag amounted to a weapon;

b) the recycle bag was capable of causing injury to the brain.

18.  In support of his argument, Mr Chan relied on the case of HKSAR v Siu Chi Wing, DCCC 596/2016, that the Defendant used a wooden stick to rob.  Both Prosecution and Defence in that case agreed that it was not a dangerous weapon.  However, the wooden stick in DCCC 596/2016 was never used to assault any victim.

19.  In the present case, this court had the opportunity to look at all the items in the recycle bag.  They are mainly a few T-shirts, a pair of jeans, some cards and a pair of sports shoes.  I agree that the recycle bag is not a weapon per se.  The recycle bag was made with PVC material.  The shoes inside the recycle bag was cushioned by his personal belongings such as clothings, but when it was used to strike at the back of the head it could still cause injury.  That was exactly what happened to the victim in the present case, that her scalp suffered a 5-cm swelling.  The defence said that it was a minor injury.  I agreed.

20.  The next question was:  was it capable to cause injury to the brain?  The prosecution said concussion was something that could not be seen superficially.  The victim in the present case did not suffer any concussion or loss of consciousness or laceration to the scalp.  She had a 5-cm swelling on her occiput.  There was no evidence to suggest that the victim passed out after the attack. 

21.  The key words are:- “Was it capable to cause injury to the brain?”  If one bears in mind of the weight, which was 7 pounds, it may or may not cause severe injury to the brain, as the heaviest object inside the bag was the pair of shoes.  There was also clothing inside the bag to cushion the shoes, which may reduce the force of impact to the head.

22.  To this end, I cannot satisfy beyond all reasonable doubt that the recycle bag was a weapon that was capable to cause injury to the brain.  Nonetheless, the Defendant did not use his bare hand or fist to attack the victim.  He used a bag, which carried a weight of 7 pounds, to attack her.

23.  With all this information in mind, I consider that a starting point of 4½ years is appropriate. 

24.  I reduce to 36 months because of his guilty plea. 

25.  As the defence referred to the case of HKSAR v Mak Chiu Yin, DCCC 89/2015 and HKSAR v Cheng Wing Hei, HCCC 405/2015, [2017] 1 HKLRD 899, I further reduce 6 months as I am prepared to take into account that at the time of the offence the Defendant’s mental illness may have played a part in the commission of the offence.

26.  The sentence is now arrived at 30 months.

Order

27.  The Defendant will serve a term of 30 months’ imprisonment.