HKSAR v. YU CHIK BING

DCCC 539/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 539 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to the two counts that he faces, namely one count of attempted robbery contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200, and one count of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.

2.  Facts admitted by the defendant disclose that at 5.30 am on 7 May 2012, Ms Lau Yim Fun (PW1), aged 48 years, was waiting for a bus alone at a bus stop near the MTR Lai King Station at Kwai Chung Road, New Territories.  Suddenly, the defendant grabbed hold of her neck from behind and at the same time pointed a yellow paper cutter which was about 16 cm long at her.  He declared robbery and demanded PW1 surrender her properties.  PW1 asked the defendant to free her so she could take out her properties.  After the defendant released his hold of her, PW1 immediately pushed the defendant away, turned around to look at the defendant so she could identify him and ran out to the road ahead and shouted robbery.  At the time, a vehicle of the Food & Environmental Hygiene Department (“FEHD”) drove past and PW1 was seen.  PW1 told those on board the FEHD vehicle about the robbery and pointed out the defendant to them.  The defendant fled at this juncture, and was chased by the officers of the FEHD who had alighted from their vehicle to give chase.  After a chase of about 100 metres, the defendant was caught and subdued.  The defendant still held the yellow paper cutter in his hand.  A report was made to the police, who arrived shortly thereafter.  The defendant was unable to produce any identity documents save for his Chinese Identity card.  He was arrested and under caution, he said that he had sneaked into Hong Kong and that he robbed the woman with a paper cutter for money.  He further stated that he had sneaked into Hong Kong via Shekou by boat at around 3 am on 7 May 2012 intending to seek employment in Hong Kong.  PW1 did not sustain any injury or loss of property in this incident.

3.  The defendant is not a first offender.  His record dates back to 2002.  He has 8 previous convictions in 5 court appearances.  Of these, he has one previous for robbery in 2003, when he was sentenced to 3 years and 8 months’ imprisonment, and four previous for illegal remaining, the most recent being his most recent conviction, on 11 January 2011, when he was sentenced to 18 months’ imprisonment.  I am told that he was released from prison for this offence on 19 January 2012.  This is his fifth illegal entry into Hong Kong, and was committed very shortly after his last release from prison.

4.  In mitigation, learned counsel for the defendant stressed the low degree of force used, and that the defendant immediately released PW1 when she asked him to.  PW1 had suffered no injuries or loss of property.  I was told that the defendant was aged 33 years.  He was brought up in a poor family and was uneducated.  He had worked as a cook since he was 11 years old.  His parents, aged 61 and 60 years respectively, live in Hunan with his 10 year old sister.  He is the sole breadwinner of the family.  His parents run a food and drink store, and business has been poor, and debts of RMB400,000 have been incurred.  The creditors pursued the defendant for repayment and disturbed him at his work place, so much so that he quit his job.  He came to Hong Kong to seek employment to earn money to clear the debt.  He sneaked into Hong Kong via Shekou by boat, and had paid all his money to the boat captain.  He had no money and was hungry and wanted money for food, and thus offended.  He was remorseful – he had co-operated from the outset and also pleaded guilty. 

5.  In sentencing the defendant, I take into account the whole circumstances, including the nature and facts of the case, the personal background and mitigation put forward on behalf of the defendant.

6.  Robbery, be it an attempt or a full offence, is a serious offence.  A term of imprisonment is usually called for.  Although the present case is one of attempted robbery, it falls within the type of robbery involving the use of knife envisaged in R vMo Kwong Sang [1981] HKLR 610, wherein a starting point of 5 years’ imprisonment after trial was considered appropriate. This was a robbery committed at 5.30 am on a lone woman waiting for a bus.  She was grabbed around her neck from behind, and a paper cutter 16 cm in length was shown to her.  Although the defendant released his hold on her neck, he did so only because she asked him to release her so she could get her properties for him.

7.  For the immigration offence, Ms Chan for the prosecution has submitted two authorities, HKSAR v Hau Hoi Tung, CACC 39/2002, and HKSAR v Lau Bing, CACC 138/2008, and I have considered these.  In the latter case, the Court of Appeal upheld a sentence of 22 months’ imprisonment imposed after a plea of guilty for a fifth illegal entry into Hong Kong.  Ms Lee asks me to take into consideration the totality principles in assessing the total terms.  She asks me to pass a partially concurrent term on the defendant.  She submits that he came to Hong Kong to seek work.  I do not accept the defendant’s claim that it was his intention to look for a job in Hong Kong.  The facts as admitted by the defendant show clearly that he committed the robberyon the very day he entered into Hong Kong, almost immediately after landing in Hong Kong.  He arrived at 3 am and committed the robbery at 5.30 am.  He had the paper cutter with him that he displayed to the victim.  He must have brought this with him when he came to Hong Kong.  I note from his record that he had a previous conviction in 2002 for possession of an offensive weapon in a public place.

8.  The defendant has pleaded guilty to the offences at the first available opportunity.  He is entitled to the full one-third reduction for the guilty pleas.  In my view, that is the only mitigation of weight before me.

9.  For charge 1, I take as a starting point 5 years’ imprisonment ie 60 months, discount this by one third to reflect the plea, the defendant is sentenced to 3 years and 4 months’ imprisonment ie 40 months. 

10.  For charge 2, the defendant is a repeated offender.  This is his fifth illegal entry into Hong Kong.  In my view, a starting point of 33 months after trial would have been appropriate and I take that as my starting point.  The defendant is entitled to one-third reduction for his guilty plea.  On charge 2, I sentence the defendant to 22 months’ imprisonment.

11.  I have taken into account the totality principle.  The defendant committed the robbery offence after illegally entering Hong Kong.  The sentences for the robbery charge and the immigration offence should be consecutive subject to the totality principle.

12.  The authorities HKSAR v Tong Fuk Sing, CACC216/1999 and HKSAR v Chan Po, CACC290/1999 are the authorities for the proposition that the immigration offences should be made consecutive with the sentence for other offences such as burglary and robbery.  But the court in considering the overall sentence should bear in mind the totality principle.

13.  In my judgment, a total sentence of 52 months should be sufficient to reflect the overall culpability of the defendant.  I order 10 months of the sentence for charge 2 to run concurrently with the sentence for charge 1, and 12 months to run consecutively, making a total of 52 months’ imprisonment.