HKSAR v. NG FU WAI

DCCC 918/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 918 OF 2016

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Reasons for Sentence

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Charge

1. The defendant pleads guilty to one charge of attempted robbery, a crime he committed 2 years ago in 2015, contrary to section 10 of the theft ordinance chapter 210 and section 159 G of the Crimes Ordinance Chapter 200 of the Laws of Hong Kong.

2. The particulars of the charge are: the defendant on the 29^th day of January 2015, outside 7-Eleven Convenience Store, Shop No. 71, Ground Floor, Melody Garden Commercial Centre, No. 2 Wu Chui Road, Tuen Mun, New Territories, in Hong Kong, together with LEUNG Yee-man, Yvonne and a person unknown, attempted to rob another person.

Fact

3. The crime was an organized premeditated operation: another man and a woman were there at the scene to assist the defendant in the escape.

4. At about 10 o’clock in the evening in question, outside the convenience store, the defendant (masked) approached the victim (a 67-year-old retiree) and tried to snatch his shoulder bag away from him.

5. The defendant met a fierce struggle from the victim. The victim even fell onto the ground but managed to hold tight his bag all along. The victim thus suffered no loss. The victim suffered no injury either, I was told.

6. In vain, the defendant fled on foot. He was chased down by some honorable passers-by, who must have noticed what had happened. Suddenly, a car drove in to intervene, from which the other man culprit (also masked) took out a hard object to intimidate and to successfully deter the passer-bys from further pursuing. As a result, the Defendant had time and managed to board the car to escape with this man.

7. To the defendant’s dismay, he had ineptly dropped his own mobile phone on the ground before he got onto the car. Upon seeing this, another assistant, a woman culprit this time, who must have been observing closely all along, was trying to help pick up the phone. Nevertheless, she was caught and stopped by some righteous people, who eventually handed both the woman and the phone to the later-arrived Police for their investigation.

8. From inside the phone, personal information of the defendant was retrieved. He was wanted by the Police.

9. As the defendant was still at large, he had time to commit 3 burglaries in the following month. Eventually, he was stopped and arrested during a routine Police check at an amusement game center. He has been detained since.

Mitigation and Record

10. The defendant is 26 years old. He is single and living with parents at a public housing unit. He received education up to Form 5 level.

11. At the time of the present offence, he has had 3 previous conviction records, where two of them being thefts. He was punished by way of fine.

12. As said, in the following month, the defendant committed other offences, namely 3 domestic burglaries. He was brought to court on 23 February 2016 by a case number DCCC 576/2015 where he pleaded guilty to all 3 charges and was sentenced to a total imprisonment term of 52 months. The present case however was still under investigation and was not dealt with on the same occasion.

13. He is now serving the above sentence, but is due to release in January 2018, which is about 7 months away. Defence Counsel is asking this Court to sentence him now in this case, and definitely before his release so as to salvage the “totality principle or benefit”. Counsel is asking this court not to wait for the other two defendants.

14. I agree to the Defence proposal and will deal with this defendant now because, although the female culprit was arrested at the scene, she jumped bail and has absconded for more than 2 years and was only re-arrested last month. Her case is still in the Magistracy stage and her plea is still unknown. For the man in the car, he is still at large. All in all, it is simply not fair for this defendant to wait. This defendant is entitled to see his sentence as soon as reasonably practicable.

Case authorities

15. Two case authorities have been considered.

16. Ku Kwok Wai [2012] 4 HKLRD 563 is a case where at 5 o’clock in the morning, a culprit, with the assistance of a distant out-looker, pushed down a young lady while she was waiting for the lift on her way home at the lobby, and the culprit managed to snatch from her an i-phone. The lady shouted. Police came to subdue the culprit. In court, because the Defendant’s action was only a “step-up” from a snatching (one push at her back), and because only one robber was in sight, the trial judge adopted 42 months’ imprisonment as a starting point. On appeal, the starting point was upheld.

17. Ting Chiu [2003] 3 HKLRD 378 is also a case of unarmed robbery where a couple in their happy hike on a mountain at the middle of the day were approached by 4 culprits. In the course of robbery, the victims’ arms were held. Some cash and a wristwatch was taken away from the husband but the wife suffered no loss. The starting point of 5 years’ imprisonment adopted by the trial judge was reduced on appeal to 4 years.

18. The fact of this case was worse than the above 2 authorities. This case was not just a step-up from snatching nor did it simply involve a few culprits: this attempted robbery was premeditated toward a particular target victim; a runaway car was prepared beforehand which came just in time to rescue the defendant; and in the design a woman was placed in the spot as a backup, she was there to make sure that they could get what they wanted from the victim’s bag ultimately and safely. For this degree of organization, this Court adopts a starting point of 4 years and 3 months (51 months) imprisonment.

Guilty Plea Discount

19. The defendant indicated his guilty plea only after a trial date was fixed and accordingly only ¼ discount is afforded to him under this head.

Assistance to authority

20. Recently, the defendant has provided various useful crime information to the Police, which although have not led to any arrest, should still according to the case of Z v HKSAR [2007] 2 HKC afford the defendant some 7% sentence discount (40% minus 33%). When 7% is added to 25%, the figure is roughly 1/3.

21. The defendant is therefore sentenced to 34 months imprisonment (51 x 2/3).

Totality

22. The 3 burglary offences were committed after the present offence. The crime nature was also different and in principle their sentence must be served separately. However, to avoid being too harsh onto the defendant, some right totality discount should be given to him, this court thus orders that 12 months imprisonment of this case is to run consecutive the existing sentence of 52 months.