HCCC123/2010
A HCCC123/2010 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 123 OF 2010
C C
----------------------
HKSAR
D D
v
E Hon Chung-wing E
----------------------
F F
Before: Hon Barnes J
Date: 3 June 2010 at 10.15 am
G Present: Mr Harish Hariram Melwaney, SPP of the Department of G
Justice, for HKSAR
Mr Shaun Patrick Kelly, instructed by Bernard Wong &
H Co. (D.L.A), for the Accused H
Offence: (1) Attempted robbery (企圖搶劫)
I (2) & (3) Wounding with intent (有意圖而傷人) I
---------------------------------
J Transcript of the Audio Recording J
of the Sentence in the above Case
K
--------------------------------- K
COURT: The defendant, Hon Chung-wing, faced the following three
L charges. The 1st charge, attempted robbery, contrary to L
section 10(1) and (2) of the Theft Ordinance, Cap. 210, and
section 159G of the Crimes Ordinance, Cap. 200. The 2nd and
M the 3rd charges were both wounding with intent, contrary to M
section 17(a) of the Offences against the Person Ordinance,
N Cap. 212. N
The defendant pleaded guilty before a magistrate and was
O committed to the Court of First Instance of the High Court O
for sentence.
P The Summary of Facts P
Q According to the Admitted Facts, the defendant posed as a Q
customer and gained entry into a flat in which the two
victims, PW1 and PW2, worked as masseuses. PW1 greeted the
R defendant and led him into a room. The defendant undressed R
and went for a shower. After the shower, the defendant took
out a cutter, pointed it at PW1 and declared robbery.
S S
PW2 heard the noise and entered the room. Both PWs then
T struggled with the defendant and the defendant used the T
cutter to slash their limbs. The defendant grabbed his
clothes and fled. PW2 called the police. After the police
U arrived, they found a pair of socks and a pair of trainers U
CRT22/3.6.2010/CC 1 HCCC123/2010/Sentence
V V
A left behind by the culprit. They also found a cutter from a A
rubbish bin at the staircase landing.
B Both PWs were rushed to hospital. PW1 sustained an 8 cm V- B
shaped cut over her right elbow and a longitudinal 3 cm cut
over her triceps. PW2 sustained a 5 cm deep cut wound over
C C
her left forearm and an 8 cm deep cut wound between her left
thumb and index finger, resulting in limited extension of
D her left wrist, limited range of movement of her left thumb D
and reduced sensation with her left hand and fingers.
E Both PWs were hospitalised for three days. PW1 was granted E
sick leave for 20 days, while PW2 had sick leave from August
23 to 1 February this year. PW1’s wound healed well and she
F F
had full power and extension of her elbow. In PW2’s case,
she was assessed to have suffered a 5 per cent disability
G and was also expected to improve over time. G
In the meantime, on 13 October last year, the defendant was
H arrested by the police. Under caution, the defendant said, H
“I did it, I robbed because I did not have money”. In a
I
video-recorded interview, the defendant admitted that on the I
date in question, that is two days after he was released
from a Training Centre, he was not able to find his friend
J and he decided to rob for money. He looked up addresses of J
“one-woman apartments” at an internet bar and bought a
cutter before proceeding to the victims’ premises.
K K
He admitted placing the cutter close to PW1’s neck to
L declare robbery. PW1 said she would go out to get money but L
returned with PW2. They tried to snatch the cutter from the
defendant and suffered injuries. The defendant soon left
M the scene and disposed of the cutter in a rubbish basket. M
He identified the cutter and the trainers seized by the
police as belonging to him.
N N
Both victims failed to identify the defendant at
O identification parades held in October 2009. O
Human DNA found on the inside surface of one of the socks
P could have come from the defendant. P
Concerning the victims’ injuries, I had a look at the
Q Q
photographs taken of the victims while they were still in
hospital and after they were discharged, I can see the
R extent of the wounds and the resulting scars which would R
appear to be permanent.
S Background S
The defendant is a 19-year-old male with previous
T T
convictions. He first transgressed the law by committing
the offence of theft in 2005 when he was only 14 years of
U age. He was put on Probation Order and Community Service U
CRT22/3.6.2010/CC 2 HCCC123/2010/Sentence
V V
A Order. In 2006, he was found to be in breach of the A
Probation Order and was then sentenced to a Rehabilitation
Centre. He then failed to return to the Rehabilitation
B Centre and was then sentenced to a Training Centre. B
In 2008, for three offences of common assault, he was again
C C
sent to a Training Centre. According to him, he committed
the present offence two days after he was released from the
D Training Centre. The record shows that he had been in the D
Training Centre for 35 months.
E The defendant is the only son of his parents. His father E
has passed away. His mother remarried and he did not get
along with the new family and became estranged from them.
F F
Mr Kelly, in mitigation, informed me that the defendant’s
mother refused to let him stay with her after the defendant
G was released from the Training Centre. He was then staying G
at a hostel organised by volunteers.
H He started taking drugs again - ketamine and cannabis - H
which he had obtained on loan, and he planned the robbery.
I
He looked for a “one-woman apartment” and did not expect a I
second woman to be present. He only intended to use the
knife to scare the lone, single woman. When the second
J woman appeared, he panicked and then injured them during the J
struggle.
K Mr Kelly informed me that the defendant had asked him to let K
me know that he would like to be sent back to the Training
L Centre for these offences. Mr Kelly, quite correctly, L
admitted that this is not a case in which he could make such
a plea to me. He rightly pointed out that, in the present
M case, the only mitigating factor is the defendant’s plea. M
Sentence
N N
Even though the defendant is aged 19, that means under 21,
O section 109A of the Criminal Procedure Ordinance, Cap. 221, O
does not apply as both the offences of robbery and wounding
with intent are excepted offences.
P P
In the case of Mo Kwong Sang V R [1981] HKLR 610, the Court
of Appeal held that the appropriate sentence for an armed
Q Q
robbery where the defendant carried a knife or other
dangerous weapon, excluding firearm, which he displayed to
R the victim should be 5 years’ imprisonment. If such a R
robbery also involves an invasion of private premises, a
sentence of 6 years would be appropriate. If physical
S violence, including tying the victims up, is used, a S
sentence of 7 years should be considered.
T T
In the present case, the defendant armed himself with a
cutter and posed as a customer to gain entry into the
U domestic premises in which the two victims worked as U
CRT22/3.6.2010/CC 3 HCCC123/2010/Sentence
V V
A masseuses. Not only did the defendant display the cutter to A
PW1 when he declared robbery, he cut and injured both
victims when they put up a struggle. I have already listed
B out their injuries and I would not repeat here. B
The circumstances of the offence do not show that it was
C C
very well planned. The defendant clearly had not visited
the premises before and therefore did not realise there were
D two workers inside the premises, and not one. On the other D
hand, the defendant purposely looked for vulnerable women
who worked by themselves to rob.
E E
It is not an excuse to say that one only brings along a
knife to scare, with no intention of using it. The fact is
F F
that once a knife or such weapon is displayed, there is
always the risk of someone getting injured. The present
G case is just one in point. G
The defendant started transgressing the law since 14.
H Although he has been given many chances, from Probation H
Order to Community Service Order, then to a Rehabilitation
I
Centre, finally to a Training Centre, he has not learned his I
lesson. Only two days after he was released from a Training
Centre, instead of finding a job or using legitimate means
J to support himself, he resorted to robbing a woman working J
by herself in an apartment.
K As the defendant had admitted, he realised that such a woman K
would have been an easy target for him to rob. He then went
L to buy a cutter and committed the present offences. Not L
only that he displayed the cutter but he actually used it to
cut and injure both victims before fleeing from the scene of
M crime. The seriousness of this offence and the defendant’s M
background are not such that another Training Centre order
would have been appropriate. In other words, the guidelines
N set down by the Court of Final Appeal in the case of Wong N
Chun Cheong V HKSAR (2001) 4 HKCFAR 12 do not apply here.
O O
In the case of HKSAR v Lai Kwok Fai, CACC346/2008, it is a
Chinese Court of Appeal judgment, the defendant, who was not
P a first offender, having two previous convictions of P
indecent assault, posed as a customer to gain entry into a
one-woman brothel. He grabbed the neck of the woman and
Q Q
pointed a pair of scissors at the victim’s back to declare
robbery. He fled when the woman put up resistance.
R R
The case was heard in the District Court. The trial judge
adopted a starting point of 7 years but reduced it to 6½ as
S the defendant was in financial difficulties. The defendant S
was given one-third discount upon plea and was sentenced to
4 years 4 months’ imprisonment.
T T
On appeal, the Court of Appeal referred to the case of Mo
U Kwong-Sang and said there were aggravating factors in that U
CRT22/3.6.2010/CC 4 HCCC123/2010/Sentence
V V
A case: posing as a customer to gain entry into domestic A
premises, not only displaying the scissors but grabbing the
victim’s neck and pointing the scissors at her neck. The
B Court of Appeal said that, as a sex worker, the victim was B
an easy target for would-be robbers. The Court of Appeal
ruled that a starting point of 6½ years was not manifestly
C C
excessive. The Court of Appeal also pointed out that
financial difficulties suffered by that defendant was not a
D ground for reducing the sentence. D
It is clear that comparing the present case with the case I
E just quoted, the circumstances of the present case are more E
serious.
F F
Although the defendant is guilty of three charges, the two
wounding offences arose out of the same attempt to rob, so
G instead of adopting an individual sentence for each offence, G
I will adopt a global starting point, but bearing in mind
that the wounding of the two victims are aggravating
H features of the attempted robbery. H
I
Having considered all the circumstances of the offences and I
the defendant’s background, I am of the view that a global
starting point of 8 years is appropriate here. The
J defendant had pleaded guilty very early - at the Magistracy J
- and is therefore entitled to the whole one-third discount.
K The sentence is therefore one of 5 years 4 months. I do not K
see any further reasons to reduce the sentence. So for
L these offences, the defendant is sentenced to 5 years 4 L
months’ imprisonment for each of the three offences, all
sentences to run concurrently, making a total of 5 years 4
M months. M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT22/3.6.2010/CC 5 HCCC123/2010/Sentence
V V