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DCCC 124/2020
[2020] HKDC 584
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 124 OF 2020
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| Present: |
Mr Arthur C.Y. Wong, counsel on fiat, for HKSAR
Mr William Lam instructed by Fan, Wong & Tso, assigned by the Director of Legal Aid, for the defendant |
| Offences: |
(1) Robbery (搶劫罪)
(2) Breach of condition of stay (違反逗留條件) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance[1] (charge 1) and one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance[2] (charge 2).
2. Full particulars of the offences are set out in the summary of facts admitted by the defendant today.
3. In summary at around 2341 hours on 23 October last year the defendant went to the “Circle K” convenience store at shop no. 239 on the ground floor of Hey Cheuk Lau, Kwun Tong Garden Estate in Ngau Tau Kok.
4. At the time two staff of the store, Mr Hong and Ms Yuen were on duty. Mr Hong was working at the cashier counter.
5. The defendant, who was wearing a surgical mask and sunglasses entered the store, approached the counter, put a bag on the counter and demanded money.
6. The defendant then took out an orange cutter which he pointed at Mr Hong and repeated the demand for money. Mr Hong fearing for his safety took out $4,600 cash from the cashier machine and placed the money in the defendant’s bag. The defendant then fled with the money.
7. The case was reported to the police.
8. The robbery was captured on CCTV. The CCTV footage also shows that the defendant had visited the store the previous two nights before the robbery.
9. The defendant was arrested by the police on 28 October 2019. Inside the defendant’s home the police recovered an orange cutter, clothing and sneakers that resembled those worn by the robber.
10. Under caution and in a video recorded interview the defendant admitted, inter alia, having visited the store.
11. Mr Hong who recognised the defendant as a regular customer at the store identified the defendant in an identification parade.
12. Enquiries with the Immigration Department revealed that the defendant was a visitor who had overstayed. The defendant last entered Hong Kong as a visitor on 28 October 2013 and was permitted to stay until 26 January 2014.
13. Under caution the defendant stated that he had forgotten to apply for an extension of stay.
Mitigation
14. In passing sentence, I have carefully considered the oral and written submissions of Mr Lam, including that the defendant, aged 44, and who is from Malaysia, lived with his girlfriend who was a photographer in the tourist industry. The defendant overstayed so he could continue to live with his girlfriend.
15. With the decline in the number of tourists visiting Hong Kong the defendant’s girlfriend had a significant drop in her income. The defendant having exhausted his savings borrowed $3,000 for living expenses from a 64-year old lady Madam Wong.
16. Desperate to repay Madam Wong and under the influence of alcohol the defendant committed the robbery. Madam Wong confirmed to the police that shortly after the robbery the defendant gave her $3,000 and extra $200[3].
17. I take into account that the defendant has no previous convictions.
18. I have read the defendant’s mitigation letter in which he expresses his remorse and says he will quit drinking alcohol[4].
Guidelines
19. In R v Mo Kwong Sang[5] 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.
20. I am satisfied that a paper cutter is a dangerous weapon[6].
Aggravating factor
21. Mr Lam submits that there are no aggravating features and that in the special circumstances of the case a lower starting point should be adopted[7].
22. I do not agree that desperation to repay a debt and acting under the influence of alcohol are special circumstances. I also do not agree there are no aggravating factors.
23. 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.
24. Deterrent sentences are required. See for example HKSAR v Kwok Cheuk Man[8] as applied in HKSAR v Wong Cheung[9], HKSAR v Lam Hoi[10] and HKSAR v Ng Ping Tak[11].
25. 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[12].
26. In HKSAR v Ng Ping Tak 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, one which involved the use of a cutter.
27. I am satisfied a starting point of 6 years’ imprisonment is appropriate. Giving the defendant full credit for his plea of guilty the sentence is reduced to 4 years’ imprisonment.
Breach of condition of stay - overstaying
28. I take into account that prior to overstaying the defendant had been a non-permanent resident on dependent status with a limit of stay valid until 24 September 2011 after which the defendant visited Hong Kong a number of times as a visitor.
29. As summarised earlier the defendant last entered Hong Kong as a visitor on 28 October 2013 and was permitted to stay until 26 January 2014. At the time the defendant committed the robbery he had therefore overstayed nearly five years and nine months.
30. The maximum sentence is 2 years’ imprisonment. A review of Magistracy appeals shows that where someone has overstayed for a number of years a starting point of between 6 and 12 months’ imprisonment has been adopted and that sentence depends partly on the length of the overstay and whether the defendant surrendered.
31. Mr Lam refers the court to two cases: R v Iqbal Zahid where the period of overstay was three and a half years[13] and HKSAR v Palathanthirige where the period of overstay was more than five years and seven months[14].
32. In R v Iqbal Zahid the court held that a sentence of 6 months on a plea of guilty was on the high side but not manifestly excessive[15]. In HKSAR v Palathanthirige the court held that a starting point of 9 months’ imprisonment was on the high side but was still within the reasonable range[16]. I note in both cases the defendants surrendered.
33. In HKSAR v Palathanthirige the appeal court reviewed a number of sentence cases for overstaying which I have also considered. In HKSAR v Gou Ting Fei the court held a starting point of 12 months’ imprisonment for overstaying over four years was probably rather on the high side but not manifestly excessive or wrong in principle[17]. There is no mention in the judgment that the defendant surrendered.
34. After careful consideration I am satisfied a starting point of 9 months’ imprisonment is appropriate for overstaying nearly five years and nine months. Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months’ imprisonment. The defendant did not surrender. There are no grounds to further reduce the sentence.
Totality
35. The two offences are entirely separate and distinct for which consecutive sentences are appropriate. I am satisfied wholly consecutive sentences are appropriate[18]. I am satisfied that a total sentence of 4 years and 6 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges[19].
Sentence
36. The defendant is convicted and sentenced as follows:
Charge 1 – 4 years’ imprisonment; and
Charge 2 – 6 months’ imprisonment consecutive to charge 1;
The total sentence to be served by the defendant is 4 years and 6 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] Cap 115.
[3] See §§2-4, 6-10 & 13 of the written mitigation submissions.
[4] See §17 of the written mitigation submissions.
[5] [1981] HKLR 610.
[6] See HKSAR v Au Chi Hang & others [2006] 2 HKLRD 312.
[7] See §11 of the written mitigation submissions.
[8] [2005] 3 HKLRD 699.
[9] [2011] 5 HKLRD 171.
[10] CACC 105/2016.
[11] CACC 52/2019.
[12] See §§54-58 of the judgment.
[13] HCMA/1996.
[14] HCMA 541/2015.
[15] The court did however reduce the sentence on appeal because the magistrate had failed to take into account the defendant had surrendered.
[16] The court did however reduce the sentence on appeal because the appellant was pregnant a fact unknown to the magistrate.
[17] HCMA 195/2002. This case is also referred to in HKSAR v Palathanthirige but not the sentence.
[18] See for example HKSAR v Tiongson Patricia Manalad [2002] 2 HKLRD 681 where consecutive sentences for burglary and breach of condition of stay were upheld, although the sentence for overstaying was reduced.
[19] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
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