HKSAR v. LAI WAI YIP AND ANOTHER

DCCC1296/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1296 OF 2009

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Reasons for Sentence

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1.  Both defendants have pleaded guilty to the 1st charge, one of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210. The 2nd defendant has pleaded guilty to the 2nd charge of going equipped for stealing, contrary to section 27(1) of the same ordinance. She was found to be in possession of a chisel‑cum-ice pick and two knives.

2.  The court was informed that the 1st defendant had many previous convictions of which three were related to dishonesty in the years 1993 and 2005. The 1st defendant is also in breach of a suspended sentence imposed seven days prior to the commission of this offence. The 2nd defendant has a clear record. Both defendants are 38 years old and were cohabiting at the time of the offence.

3.  I will not repeat the summary of facts but I will outline the important points. On 28 September 2009 at about 3:15 am in the morning, a 52 year old female was on her own on the streets of Kwung Tong. She was the victim of this offence. She was approached first by the 2nd defendant who she ignored. The 1st defendant then approached and punched her shoulder causing her to fall to the ground. Whilst she was on the ground, both defendant punched her face and body. The 2nd defendant then snatched her mobile phone and both fled.

4.  The defendants were arrested a few minutes later nearby. The 2nd defendant had the phone in her possession as well as the chisel in her back pocket of her jeans and two knives which were found in her bag. No weapon was used during the course of this robbery. A passer-by did see two persons attacking this victim whilst she was on the ground and called the police. The victim suffered, according to the medical report, multiple abrasions; there were no serious, lasting or debilitating injuries.

5.  I have heard mitigation put forward on behalf of both defendants. There were two conflicting versions of events leading to the commission of this offence. The 1st defendant explained that there had been a domestic argument between himself and the 2nd defendant that spilled onto the streets of Kwun Tong that led to this robbery. The point to this version was to convince the court, I am sure, that the offence was not premeditated.

6.  The 2nd defendant on the other hand disputes this version and suggests that the 1st defendant masterminded the robberies due to desperation for money. Apparently he suggested going to Kwun Tong to look for ladies on their own to rob. Women on their own do make vulnerable victims. The 2nd defendant agreed out of a misguided loyalty to her boyfriend.

7.  Considering the time of night and the fact the victim was a lone female, I tend to believe the offence was premeditated. However, whichever version is the truth is neither here nor there where the sentence is concerned. It will not, in my opinion, affect the starting point I consider appropriate. Both admit the commission of the offence was intended and carried through. I do not find that their roles differ, nor do I differentiate the defendants where sentence is concerned.

8.  Mr Richmond has submitted on behalf of the 1st defendant two well known authorities for my consideration, HKSAR v Ting Chiu CACC174/2003 and HKSAR v Tsang Wai Man CACC288/2006. Miss Ma on behalf of the 2nd defendant has submitted an authority R v Yau Kwok Tung CACC17 of 1987. These authorities all deal with robbery offences were no weapons were used or displayed. That scenario can be distinguished from the guidelines of R v Mo Kwong Sang [1981] HKLR 610, it is clearly less serious.

9.  From these authorities and numerous others including HKSAR v Lam Ka Hung CACC294/2003 and HKSAR v On Ling [2005] 1 HKC 227, it is clear a 4 year starting point would be appropriate where a robbery has been committed with no weapon used or displayed. In the authority of Ting Chiu, the fact there was more than one culprit as there is here was taken into account when 4 years was considered an appropriate starting point. In the authority of Lam Ka Hung, a 57 year old female victim was robbed by a single culprit, no weapon was used and she sustained minor injuries from a struggle. A starting point of 4 years was held to be appropriate in that case. In the authority of On Ling, two culprits robbed a 45 year old male at a bus stop. A rolled up newspaper was pointed at him whereupon he dropped his bag which was seized by the culprits and in this authority a 4 year starting point was also held to be appropriate.

10.  In this case I take into account the victim was female, alone and robbed by both defendants at 3 o’clock in the morning. Both defendants attacked her physically in order to rob her. I have considered the defendants’ pleas and mitigation put forward. I find a 4 year starting point to be an appropriate one where charge 1 is concerned for both defendants.

11.  The 2nd defendant faces a second charge of going equipped for stealing. I have seen the physical exhibits in court today. There are no guidelines for offences of this nature. The facts of each individual case must be considered to come to an appropriate starting point. These exhibits were obviously taken out with her to commit offences but ultimately were not produced or used. I find a starting point of 18 months to be appropriate for charge 2. I will consider the totality principle where the 2nd defendant is concerned.

12.  The 1st and 2nd defendant are entitled to a discount of one-third for their pleas today. For charge 1, the 1st and the 2nd defendant are sentenced to 2 years and 8 months’ imprisonment. For charge 2, the 2nd defendant is sentenced to 12 months’ imprisonment of which 3 months will run consecutively to charge 1 and the balance concurrently. The 2nd defendant faces a total sentence of 2 years and 11 months.

13.  The 1st defendant is in breach of a suspended sentence imposed in the Magistracy case KC4627 of 2009. He was sentenced to 2 months’ imprisonment, a sentence which was suspended for 18 months on 21 September 2009. I see no reason not to activate this 2 month sentence and I will. I order it to be served consecutively to charge 1. The 1st defendant is sentenced to a total of 2 years and 10 months sentence.