HKSAR v. TANG MAN CHIU

HCCC212/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 212 OF 2000

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REASONS FOR SENTENCE

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1. Defendant, you have pleaded guilty to two charges of assault with intent to rob before a magistrate and have been committed to this court for sentence.

2. The agreed facts show that on 18 April 2000, at about 6:31 pm, in a lift in an estate in Yuen Long, you demanded of two young ladies, Chiu Man Yan and Chiu Man Yi, that they hand over their mobile telephones. When they ignored you, you took a hammer from your bag and threatened them with it.

3. As you gestured to hit the stomach of Chiu Man Yi, Chiu Man Yan moved in front and was hit on the head with the hammer. She suffered a haematoma of about 5 cm in extent and a laceration of about 2.5 cm, both to the head. A struggle ensued, in which Chiu Man Yan managed to hit you with the hammer while Chiu Man Yi grabbed you. Chiu Man Yi suffered bruising and tenderness to the forearms and abdomen. Fortunately, other residents of the building came to the victims' assistance, and you were apprehended. You were arrested and cautioned and admitted the offences. Chiu Man Yan suffered some complications from the head injury but I am informed that, fortunately, she is now fully recovered.

4. The guideline sentences for armed robbery, where a knife or other dangerous weapon, apart from a firearm are used, are set out in R v. Mo Kwong Sang [1981] HKLR 610. They apply equally in cases of assault with intent to rob. The appropriate sentence after trial is at least five years. If such a robbery, also involves an invasion of private premises (which includes lifts and staircases), six years is appropriate. If physical violence is used, a sentence of seven years should be considered.

5. In the case of Secretary for Justice v. Ma Ping Wah, AR 1 of 2000, the Court of Appeal in May 2000, after the date of this offence, confirmed the guidelines set out in Mo Kwong Sang but took the view in respect of "head bashing" robberies that :

".... the usual sentence to be imposed for such 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 the robber or the culprit who is intent on robbery, should not be less than eight years' imprisonment."

6. The agreed facts do not show a deliberate blow to the head. Rather it appears that a blow was aimed at one woman's stomach and the other woman moved so that her head was hit. In any event, the new "head bashing" guidelines were not in force at the time of this offence. I will deal with this case under the Mo Kwong Sang guidelines.

7. I take into account that these offences appear to have been committed on the spur of the moment, that you yourself were hurt in the ensuing struggle, and immediately admitted guilt.

8. Nevertheless, this was a violent attack and it did have serious consequences for at least one of the victims. I will apply a starting point for each offence of seven years. The offences arise out of one attempt to rob and it is proper that the sentences should run concurrently.

9. I take into account your early admission, co-operation with the authorities and pleas of guilty. You are entitled to a discount of one-third for these considerations. You are not of previous good character, though you have no similar previous convictions. I have not heard any other mitigating factors which might move for any greater discount.

10. You are sentenced, therefore, on each charge to four years and eight months' imprisonment, concurrently.

11. The only remaining question is whether to make the sentences consecutive to your existing sentence would produce too great a totality. In view of your relative youth, I think it would. To that extent, I will order the sentences to commence after you have served 10 months of the sentence in DC 582 of 2000.

12. OIT of application for disposal.