COURT: D1, you have been convicted after trial of both counts on the indictment of attempted robbery and wounding with intent. D2, you have been convicted on the 1st count of attempted robbery having pleaded guilty to the 2nd count of wounding with intent.
The incident on 24 February of last year, which gave rise to the two charges, establishes that you two took part in a savage and cowardly attack on the victim, a man in his mid‑fifties, whilst on his way to opening up his shop. He was punched, kicked and beaten over the head with a wooden rod repeatedly by the two of you who attempted to snatch his bag which contained some $21,000‑odd.
He valiantly resisted you and succeeded in preventing you from robbing him of the bag but suffered nasty injuries to his head which included three lacerations requiring some 25 stitches and a fracture to the bony structure surrounding his left eye.
You two fled the scene leaving the victim in the middle of the road bleeding profusely from his head. You were chased into the Nam Cheung MTR Station where you were apprehended by civic-minded members of the public.
From the evidence adduced at trial it is quite clear that it was you, D1, who initially attacked the unfortunate victim by punching him twice in the chest and dragging him into the road. You, D2, then picked up a pole, Exhibit P2, and struck the victim a number of times over the head.
The victim attempted to shield his head by covering it with his hands whilst holding on to his bag. The victim was also punched and kicked in the body by either one or other or the both of you. This was a clear joint enterprise between the two of you to attack and attempt to rob the victim, and as such I see no reason to differentiate between either of you in terms of sentence.
The case of Secretary for Justice v Ma Ping Wah, Application for Review No 1 of 2000, is clearly applicable as the circumstances of the attempted robbery fall into the category of cases commonly referred to as head‑bashing cases.
In that case the Court of Appeal was of the view that the usual sentence for robberies following a contested trial 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 a robber or a culprit who is intent on robbery, should not be less than 8 years’ imprisonment.
Whilst I am satisfied that this was not a pre‑planned attack but rather a spontaneous attack on the part of you two defendants, I reject any suggestion that either of you were provoked by the victim. It is only fortunate that the victim did not suffer more serious and long‑lasting injuries.
On the 1st charge I sentence each of you to 8 years’ imprisonment.
On Charge 2, I sentence you, D1, to 4½ years’ imprisonment which I will order to run wholly concurrent with the sentence on Charge 1 as this offence constituted the violence which is part and parcel of the attempted robbery arriving, therefore, at a total sentence in your case of 8 years’ imprisonment.
On Charge 2, D2, my starting point is also one of 4½ years imprisonment. However, as you pleaded guilty to this offence you are entitled to the usual one-third discount in sentence. Accordingly, you are sentenced to 3 years’ imprisonment on Charge 2 which is similarly ordered to run concurrently with the sentence of 8 years on Charge 1, arriving also at an overall sentence of 8 years’ imprisonment.