HKSAR v. CHAN YAU MING

HCCC 303/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 303 OF 2016

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

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COURT:

The defendant has today pleaded guilty to one charge of attempted robbery.

He has admitted a Summary of Facts which has been read by the prosecution in support of that charge. The indictment alleged that on 5 February 2016, at Harry Lee & Co, a Jewellery shop on the ground floor, 42 Hankow Road, Tsim Sha Tsui, he attended to rob one Cheng Pui-king, a staff member.

The defendant was arrested on that day, and the proceedings were subsequently transferred to this court on 30 June 2016. At that time, the defendant had indicated his intention was to plead not guilty.

There were two pre-trial reviews prior to the matter coming on today. In consequence of one of those, written submissions had been provided on behalf of the defendant as part of his mitigation.

The Summary of Facts admitted by the defendant reveals, inter alia, the following:

“On the morning of 5 February 2016, at around 9.30 am, the defendant, wearing a mask and a cap went into the Harry Lee Jewellery Store on the ground floor of 42 Hankow Road in Tsim Sha Tsui.

He was carrying with him at the time an imitation pistol. He approached one member of the staff of the jewellery store, and placed the pistol at her neck. He told her that it was a real pistol, and that she was not to activate the alarm.

The defendant then, together with this person, walk towards the jewellery cabinets, but was stopped immediately by another member of the staff. He pointed the imitation pistol at this member of staff who pushed it away. There was an ensuing struggle.

As a consequence, the defendant fled the shop, chased by one of the members of the jewellery store staff. Alerted by the jewellery store staff’s cries, a person from a nearby store gave chase and apprehended the defendant.

The police were called, and when they arrived, found the imitation pistol was inside the defendant’s waistband.

After his arrest, the defendant told the police officers that he had purchased the toy pistol for the express purpose of committing this robbery. He told them that he wanted funds to pay his rent and medical expenses.”

The defendant has an extensive criminal record dating back to 1969. Significantly, in 1974, he was charged with assault with intent to rob, and in 1976, he was sentenced to 4 and a half years’ imprisonment for the offence of robbery. It is equally of significance that the last offence committed by the defendant was in 2001.

In the course of comprehensive mitigation on behalf of the defendant, both in written submissions and orally, Ms Tsang has emphasised a number of matters. She points out that whilst the defendant is now aged 64, he had an extensive criminal career right through until 1981 -- sorry, right through until 2001. At that time, he left Hong Kong and moved to live in mainland China. He met there and married his current wife. There, they operated a small restaurant business.

He returned to Hong Kong around 2014 as a direct consequence of his deteriorating health. The medical reports which have been provided to me indicate the following:

“The defendant has a history of diabetes, hepatitis, and liver sclerosis.

In 2014, he was hospitalised with a severe infection. This resulted in him contracting meningitis. He was in a coma for some period of time, he remained in hospital for in excess of two months. As a consequence, it appears, of the meningitis, he also developed what has been diagnosed as an organic psychosis, with what were said to be hallucinatory manifestations at the time of diagnosis.”

One thing that is apparent from the reports now provided to me is that the defendant’s medical conditions are stabilised. His diabetes is treated with regular injections. The liver sclerosis subsequent to the surgery has regularly been followed up, and the treating psychiatrist, in respect of the psychosis advises that he is receiving medication, and that it’s regularly followed up.

The defendant has been in custody since the date of his arrest. He has indicated in his mitigation letter to this court that the medical treatment whilst in custody has been very beneficial.

In the course of her mitigation, I have suggested to Ms Tsang that the courts rarely would significantly mitigate a sentence based on the health of the accused. One passage I referred was that which is taken from a case of Clarkson, 171 ACR 1 49, where it is said that the ill health of an accused is not a licence to commit crime. In particular, more significantly, in the reported decision of Yip Kai Foon v HKSAR 3 HKFAR 31, at 35, then Li CJ said this:

“Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity.”

Two things are immediately apparent insofar as this defendant is concerned. The medical condition of the defendant is not such, in my opinion as would warrant any reduction in his sentence.

Whilst in 2014, there is little doubt that the defendant was seriously ill, his current conditions appear to be stabilised and treated. In HKSAR v Bayanmmunkh [2012] 2 HKC 233, at 238, McWalters JA said that there is sound policy reasons which under pin the approach to the sentencing of offenders whereby the courts would not, by their sentences appear to endorse the view that ill health was a licence to commit crimes, or in some way would shield an accused from the consequences of his conduct.

That court went on to say that the court assumed that the Correctional Services Department would provide medical services adequate to each prisoner’s needs. I need only say in respect of this defendant, it is quite apparent that the medical needs of the defendant are very well cared for by the Correctional Services Department.

Reverting back to what was said in Yip Kai Foon, there can be no doubt that the offence of attempted robbery with an imitation firearm is a crime of the utmost gravity.

I start now with the appropriate starting point.

In the cases helpfully provided by Ms Tsang, it is quite apparent that the Court of Appeal has said on a number of occasions, that armed robbery of banks or jewellery shops with a weapon, be it an imitation firearm or a real firearm, sentences with starting point of 12 to 15 years are appropriate.

Those authorities also highlight the fact that there is no real difference between using a real or imitation pistol insofar as the starting point is concerned. Were it be a real pistol, and it was discharged in the course of the robbery, or attempted robbery, that would be a significant aggravating factor to enhance the starting point for sentence.

The Court of Appeal in CACC 4/2007, unreported, HKSAR v Mang Wai says as follows at paragraph 9:

“In our judgment, it cannot be said the starting point of sentence of 12 years is excessive. There is a substantial line of authority that armed robbery of banks, whether with real or imitation weapons, attract starting points of sentences between 12 and 15 years.”

To which should be added that those observations apply with equal force to attempted robberies of jewellery shops, moneychangers, gold shops and the like.

In the present case, there was clearly planning on the part of the defendant. He had purchased the imitation firearm the day before the offence was committed. Whether he was desperate for money to pay medical expenses or for Chinese New Year does not, in my opinion, in any way alter the gravity of the offence.

In my opinion, the appropriate starting point for the defendant’s offence is one of 12 years after trial.

It is accepted by the prosecution and submitted on behalf of the defendant that by reason of the date of the committal of these proceedings to this court, he is entitled to a full one-third discount from that starting point.

I have now to consider whether, in the circumstances, taking all matters into account, a further discount should be applied.

I have considered the medical reports provided and the submissions made by Ms Tsang in respect of those matters. As I have earlier indicated, whilst the defendant’s health was quite precarious in 2014, the various conditions he suffers from appear now to be stabilised. Irrespective of that, in my opinion, the Court of Appeal has made it abundantly clear that it would be very rare circumstances where the health of an accused would permit a mitigation beyond that which would normally be given for a plea of guilty.

In the present circumstances, the offence committed by the defendant is of such gravity that it would be inappropriate to grant him any discount for the condition of his health.

I have been provided with a number of letters, and these have been translated, from the defendant, his wife and his son, which placed before me to indicate how obviously remorseful he is for his offending. I have considered those carefully, but like his medical condition, I am unable to increase the degree of discount from the starting point by reason of that.

For the avoidance of any doubt, it was suggested on the defendant’s behalf that perhaps his medical condition may have contributed to his lack of judgment in committing this offence, and I have indicated that absent any medical evidence to support that proposition, I will not accede to that suggestion.

Returning, then, to the sentencing, in my opinion, the full discount of one-third will be applied to the starting point of 12 months. There is nothing in the material or the submissions before me that would permit me to give a discount beyond that. That would result, then, in a sentence of 8 years’ imprisonment, and that is the sentence that is imposed on the defendant.