HKSAR v. LO SUET HO AND ANOTHER

HCCC 296/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 296 OF 2013

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HKSAR
v
Lo Suet-ho (羅雪浩) (A1)
Chan Kwok-chung, Michael (陳國忠) (A2)

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Before: The Honourable Madam Justice Beeson

Date: 19 September 2013 at 10.20 am

Present: Mr Andrew Cheng, SPP (Ag) of the Department of Justice, for HKSAR
Mr David A S Khosa, instructed by Rowdget W Young & Co, assigned by DLA, for the 1st and 2nd accused

Offence: (1) & (2) Robbery (搶劫罪)(against 1st accused only)
(3) Robbery (搶劫罪) (against both accused)

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

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COURT: The 1st defendant pleaded guilty on 12 July 2013 to two charges of robbery where he was solely charged and the 1st and 2nddefendants pleaded guilty to a third count of robbery where the two defendants were jointly charged. In each case, the victim ofthe offence was a taxi driver and all three offences occurred early in the morning.

On 30 August, the defendants confirmed the facts that they had admitted at committal and confirmed their pleas. Those facts show thatthey were arrested soon after the robbery in Charge 3 had been committed. That robbery occurred around 0405 hours.

The defendants agreed to rob the taxi driver. The 1st defendant admitted, on his arrest, that he had brought a paper-cutter from homefor the purpose of the robbery. The 1st defendant told the driver to drive to a secondary school in a remote area and on all occasions,the modus operandi was similar. The 1st defendant grabbed hold of the driver’s neck and declared robbery. He used the cutter topoint to the neck of the driver. On the third occasion, he also hit the back of the driver’s head twice.

The 2nd defendant took part in the attack and was responsible for taking the driver’s money box. The 1st defendant discarded thecutter when he and the 2nd defendant fled from the taxi.

The 2nd defendant confirmed the facts and said that he too had hit the driver’s head twice. Each defendant identified the coin boxlater but said they did not know the exact amount of money which was in it.

None of the drivers could identify either defendant at the subsequent identification parades. In later video interviews, the 1st defendantadmitted that he committed the first two robberies as well. The same method was employed but, in those cases, he said he had useda broken glass bottle with which he threatened the drivers. The money that the 1st defendant took in the first robbery was sharedwith a friend who was not present at the actual robbery but who knew about the plan.

The 1st defendant gave a third video interview in which he said that he committed the second robbery by himself and that he committedit “for fun”. He had obtained a mobile phone and cash. He sold the telephone at a second-hand mobile phone shop at Sham ShuiPo for $4,000 and spent the money.

The driver who was robbed in the first offence confirmed that he had “a hard object” pointed at his neck when robbery was declared.He was sent to the Prince of Wales Hospital for treatment and was found to have sustained an abrasion on the right side of his neck.

The driver victim of the 2nd charge says he felt a hard object pointed to his neck. Neither victim of the 2nd and 3rd charges wasinjured.

When police were called to the scene of the Charge 3, the 1st and 2nd defendants were arrested. The 1st defendant said that he robbedbecause he had no job and no money to spend. He said he knew it was wrong and asked for a chance. The 2nd defendant said that hehad been “greedy momentarily”, that he knew it was wrong to commit a robbery and he also asked for a chance.

The 1st defendant has a criminal record starting in January 2010 when he was placed on probation for 12 months after being convictedof common assault. In August 2010, he was sent to a rehabilitation centre after being convicted of assault occasioning actual bodilyharm.

In April 2013, he was convicted in the District Court of two charges of trafficking in dangerous drugs. He was sentenced on the 1stcharge to 20 months’ imprisonment and on the other to 12 months’ imprisonment. The sentences were ordered to run concurrentlyand the 1st defendant is still serving that sentence.

The antecedents statement confirms that the date of birth of the defendant is 14 January 1993. He was born in China and came to HongKong in 1996. He dropped out of school in form 2 without completing form 2. In 2011 he worked as a deliveryman but was unemployedat the time of his arrest.

Prior to his arrest, he lived with his mother who is aged 40. She had separated from his father almost at the same time as the 1stdefendant was born. The 1st defendant has epilepsy and needs long-term medication to control it. He claimed in his antecedents statementto have been a drug addict for three years, taking ketamine and cocaine.

In mitigation, I was urged to take into account the fact that the major mitigation was the pleas of guilty to the three offences,the fact that the defendant is a young adult, the fact that the amounts obtained from the robbery were small and the fact that itwas an amateurish offence in all three cases.

The 2nd defendant was aged 16 at the time of the offence; he is now 17. He does not have any previous conviction. He was arrestedfor this offence while he was on police bail for another matter that was being investigated.

In view of his age, I sought Training Centre and Background Report to obtain more detailed information about his personal circumstances.I made it clear to the 2nd defendant when I ordered those reports that I was nonetheless of the view that a sentence of imprisonmentwas appropriate given the gravity of the charge and that he should not expect anything less than that.

The 2nd defendant came from a seriously split family. He was the only child of the parents. His mother had a son by a previous relationshipand his father had a son and daughter by an ex-wife who are half-siblings to the defendant. The defendant had little contact withhis mother during those years. His father was supervising him but he died of cancer in 2012. The defendant was still living withthe father’s girlfriend or co-habitee at the time of the offence.

The defendant left school before completing form 3 and, after that, had a negligible working history amounting to a few weeks. Heappears to have told police, when he was giving his antecedents statement, that he was unemployed when he was arrested but I wastold that he had been working up to the time of his arrest as a warehouseman.

He claimed in his antecedents statement that he had begun to inhale “Ice” and took it about once a week from March 2012 and his lastdose was said to be taken in May 2013.

These robberies were very serious. The defendants targeted taxi drivers who were plying for hire at night and it has long been recognisedthat taxi drivers are of necessity in a vulnerable position and, for that reason, the sentences for such robberies are required tocontain a heavy deterrent element.

The starting point for such offences where some, although not great, violence is used or if a weapon is displayed but not used towound or injure is 7 years after a contested trial. That guideline resulted from the case of Tran Van Anh [1993] 2 HKCLR 122.

In Tran, the features which gave rise to the suggested starting point were much the same as those present in the robbery in Charge 3: thepresence of more than one robber; directing the driver to a remote location; the choice of the early morning hours in which to committhe robbery; the use of a paper-cutter and the gratuitous violence in hitting the driver’s head.

In that case, McDougall J confirmed the fact that sentences of 7 years after a contested trial would be justified for offences similarto that in the present case. That guideline is still the position according to the case of HKSAR v Hussain Shakil, CACC 387/2011.

I note that in Charge 1, the facts show the driver sustained minor injuries and referred to a hard object being pushed against hisneck. The 1st defendant admitted that that object was a paper-cutter. The driver the victim of the 2nd charge also had a hard objectplaced against his neck but suffered no physical injury.

I should comment that the fact that the defendants did not appear to get very much in the way of financial benefit from their crimeis not relevant in terms of this offence.

I have had the advantage of having a Background Report and also a Training Centre report in respect of the 2nd defendant. The officerconsiders that he is suitable mentally and physically for detention in a Training Centre and there is a place available for him.It has been urged on me that the proper course for this young defendant is a Training Centre Order in the first instance, especiallyin view of his previously clear record.

I was advised that the mother has come to realise that she needs to supervise him and is prepared to do so. A Training Centre Orderis of no value unless there is some support from the family and friends outside prison.

The defendant has put before the court a letter admitting his guilt, confirming his remorsefulness and saying that he wishes to turnover a new leaf and improve himself. The officer doing the Background Report considers that he is ready to shoulder his legal responsibilityfor his misdeed and promised to lead a law-abiding life in future.

However, given the seriousness of the offence, I am not convinced that a Training Centre Order is the appropriate way to deal withthis defendant. He admits having triad contact; he admits drug-taking; he was not entirely frank with either officer when he gaveinformation to them for the report. Accordingly, I propose to deal with him by way of a sentence of imprisonment.

In respect of the 1st charge in relation to D1, I take a starting point of 6 years, take into account his plea and sentence him to4 years’ imprisonment. On Charge 2, I take a starting point of 6 years and sentence him to 4 years’ imprisonment, giving himthe discount. On the 3rd charge, I take a starting point of 7 years and sentence the 1st defendant to 4 years and 8 months’ imprisonment.

I order that 6 months of the sentence from Charge 1 and also 6 months from Charge 2 run consecutively to the sentence on Charge 3and that all those sentences run consecutively to the sentence he is currently serving.

The total sentence for these offences will be 5 years and 8 months’ imprisonment.

In respect of the 2nd defendant, I take into account the facts put before me. I take a starting point of 7 years. I see no differencebetween him and the 1st defendant in relation to this offence and I sentence him to 4 years and 8 months’ imprisonment, givinghim the full discount for his plea.