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DCCC 544/2020
[2020] HKDC 790
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 544 OF 2020
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| Present: |
Mr Poon Siu Bunn, counsel on fiat, for HKSAR
Mr Jacky T.K. Lai instructed by Lee & So, assigned by the Director of Legal Aid, for the defendant |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance[1].
2. Full particulars of the offence are set out in the summary of facts admitted by the defendant on 14 September 2020. In summary at around 2:50 a.m. on 22 April this year the defendant went to the “Circle K” convenience store on the ground floor of Coronet Court, 2 Hung Tai Road in Yuen Long.
3. At the time Ms Tang was the cashier while her colleague Ms Wang was taking a break in the staff room.
4. The defendant entered the store, took two cans of beer from the fridge and approached Ms Tang. While Ms Tang was scanning the cans the defendant walked behind the staff counter, pointed a folding knife at Ms Tang and declared robbery. A photograph of the knife has been submitted to court.
5. The defendant told Ms Tang to put the money and cigarettes into a bag. Ms Tang put $931 and fifty-eight packets of cigarettes into a Circle K plastic bag.
6. The defendant then instructed Ms Tang to turn round and put her hands behind her back. When Ms Tang did so the defendant tied Ms Tang’s hands with a rope, told her to squat down and not make a noise. Ms Tang was very scared and did as told. Only after the defendant left did Ms Tang call for help.
7. Mr Poon informs the court that Ms Tang was not physically injured.
8. The robbery was captured on CCTV installed inside the store. The police were called and viewed the CCTV footage. I also viewed the CCTV footage on 14 September 2020.
9. The defendant was arrested the following day in Tin Shui Wai when the police saw the defendant wearing the same black “Nike” windbreaker worn during the robbery. $88.10 and two opened packets of cigarettes were found in the defendant’s possession.
10. Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that he was a street sleeper; he committed the robbery because he had no work and no money; he picked up a knife and a rope which he used to rob the female in Circle K and that he had spent the money on food.
11. The defendant also told the police he had left the knife, the jeans he wore during the robbery and some of the cigarettes in a pavilion. After the interview the defendant agreed to take the police to the pavilion. The defendant took the police to a pavilion in Tin Shui Wai where the police recovered the knife, the jeans, the rope and thirty packets of cigarettes.
Mitigation
12. In passing sentence, I have carefully considered the oral and written submissions of Mr Lai, including that the defendant, aged 60, is divorced with two children aged 14 and 16 who live with their mother and suffers from pneumoconiosis and scoliosis[2].
13. I have read the mitigation letter written by the defendant in which he expresses his remorse and apologises to the victim. I have also read the letters written by the defendant’s ex-wife and his two children who variously describe the defendant as a kind, responsible, hard-working and a loving and caring father. All ask for a lenient sentence.
14. The defendant’s ex-wife, his daughter and son are in court today to show their support for the defendant.
15. I take into account that the defendant has no previous convictions and that he committed the offence because after the company he worked for closed down he could not find another job and having used all his savings found himself living on the street. Penniless and hungry and experiencing severe pain in his spine the defendant committed the robbery[3].
Guidelines
16. In R v Mo Kwong Sang[4] the Court of Appeal laid down guidelines for armed robberies. The appropriate sentence for an ordinary case of armed robbery where a knife or other dangerous weapon is carried and displayed is 5 years’ imprisonment.
17. The Court of Appeal suggested that if any physical violence is used on any victims, including tying up victims, a sentence of 7 years should be considered.
Aggravating factor
18. I am satisfied robbery of a “Circle K” convenience store is an aggravating factor. In my view staff of convenience stores, particularly those working in the early hours of the morning, are vulnerable to this type of robbery and require protection.
19. Deterrent sentences are required. See for example HKSAR v Kwok Cheuk Man[5] as applied in HKSAR v Wong Cheung[6], HKSAR v Lam Hoi[7] and HKSAR v Ng Ping Tak[8].
20. In HKSAR v Lam Hoi the Court of Appeal discussed what the quantum should be for this aggravating factor. The court held that inthe circumstances of the case a starting point of 6 years’ imprisonment was appropriate for each of three robberies of convenience stores[9].
21. In HKSAR v Ng Ping Tak (referred to the court by Mr Lai)leave to appeal against sentence was refused where the sentencing court had adopted 6 years’ imprisonment as the starting point for each of two robberies of convenience stores committed by two robbers as part of a joint enterprise.
22. Although the defendant tied up Ms Tang for which a 7 year starting point is to be considered, taking into account that the defendant is 60, has never been in trouble before and that due to recent events the defendant found himself out of work with no money leading to him sleeping on the streets, I am satisfied a 6 year starting point is appropriate.
23. Giving the defendant full credit for his plea reduces the sentence to 4 years’ imprisonment.
Restitution
24. The defendant agrees to pay $931 by way of restitution to the convenience store and agrees that the $88.10 found on him when he was intercepted by the police be paid to the store.
25. The defendant also offers $500 compensation to Ms Tang[10]. Mr Poon informs the court that Ms Tang refuses the offer of compensation[11].
26. The defendant therefore increases the offer of restitution to Circle K by $500. Circle K accept the offer of partial restitution but due to sanitary, health and potential customer liability concerns are unable to offer for resale the packets of cigarettes recovered by the police.
27. The defendant’s ex-wife has paid the sum of $1,431 into court today. In recognition I reduce the sentence by 1 month to 3 years and 11 months’ imprisonment. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 11 months’ imprisonment and ordered to pay $1,519.10 compensation to Circle K: $88.10 from the monies seized on arrest and $1,431 from the monies paid into court.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] See §§2 & 5 of the written plea in mitigation.
[3] See §§3-5 & 7 of the written plea in mitigation.
[4] [1981] HKLR 610.
[5] [2005] 3 HKLRD 699.
[6] [2011] 5 HKLRD 171.
[7] CACC 105/2016.
[8] CACC 52/2019.
[9] See §§54-58 of the judgment.
[10] See §6 of the written plea in mitigation. Sentence was adjourned for Mr Poon to take instructions on whether Ms Tang would accept the offer of compensation.
[11] See letter dated 18 September 2020 from Mr Poon.
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