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DCCC1178/2008
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1178 OF 2008
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HKSAR |
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v. |
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Lau Wing
(also known as Lau Fei-yeung) (D1) |
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Fung Yuk-kit (D2) |
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Before:
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Deputy District Judge A Wong
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Date:
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16 January 2009 at 11.21 am
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Present:
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Miss Hermina Ng, Public Prosecutor, of the Department of Justice, for HKSAR
Mr Kam Yee-wai, Andrew, of Messrs Kam & Fan, assigned by the Legal Aid Department, for the 1st Defendant
Mr Tse Lin-fung, Charles, of Messrs Yip, Tse & Tang, assigned by the Legal Aid Department, for the 2nd Defendant
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Offence:
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Robbery, etc. (搶劫等罪項)
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Reasons for Sentence
1. There are two defendants in this case. They each pleaded guilty to one charge of robbery and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.
2. In sentencing I take into account the whole circumstances, including the nature and facts of the case, personal background of each defendant, and mitigation put forward on their behalf.
3. Both defendants are illegal immigrants, each admitting to have sneaked into Hong Kong the day before the robbery.
4. The victim of the robbery was a lady walking alone in a not busy area in Tuen Mun around 11 pm at night. Before her mobile phone and handbag containing a small amount of cash and other items, such as credit cards and Identity Card were taken away she was subjected to force. She suffered tenderness in her left face, left chest and left arm. No weapon was used. I accept that the force used upon the victim was at the low end of seriousness.
5. Both defendants are not first offenders. The 1st defendant sneaked into Hong Kong five times before, starting in 1999 and the last conviction of this offence was in 2006. Except on the last occasion, the 1st defendant committed another offence at the same time. One of those offence was theft, and twice he committed the offence of burglary as well.
6. The 2nd defendant sneaked into Hong Kong three times before, starting in 2005, and the last conviction of this offence was in 2007. Also except on the last occasion he committed other offences at the same, including each time the offence of theft.
7. In mitigation, learned counsel for the defence stressed the low degree of force used, no weapon was used nor even shown, and the fact that the victim suffered no serious or permanent injury. I was told that both defendants had received little education and were victims of recent economic downturn. The offence was not premeditated. Both defendants claim to have come to Hong Kong to look for employment.
8. Learned counsel for the 1st defendant said in mitigation that the 1st defendant did not use his fist to assault the victim on her face contrary to what was stated in the Summary of Facts. I indicated that I was not going to accept this assertion without hearing evidence. Having taken further instruction, learned counsel informed the court that upon advice the 1st defendant decided not to testify on this particular point.
9. I consider the sentence on the basis of what is said in the Summary of Facts.
10. The case is a serious one taking into account the whole circumstances, having regard to the submissions and sentencing precedents such as Tsang Wai Man, CACC288/2006; Ting Chiu, CACC174/2003; Centos Jerome Maria, CACC318/1991; and Yau Kwok Tung [1987] HKLR 782.
11. The present case was a case of robbery committed by two persons on a single female victim late at night on a street. No weapon was used; force, though minimal, was applied. The victim suffered minor injury. Both defendants have a poor criminal conviction record.
12. In all the circumstances, I adopt a starting point of 4 years for the offence of robbery. There is little to distinguish materially the culpability between the two defendants.
13. For Charge 2 to which the 1st defendant pleaded guilty, bearing in mind the maximum sentence for the offence is one of 3 years, the case of So Man King [1989] 1 HKLR 142, having regard to his previous record, I adopt a starting point of 30 months.
14. For Charge 3 to which the 2nd defendant pleaded guilty, having borne in mind also the same factors, I adopt a starting point of 27 months.
15. I give each defendant a one-third discount for their guilty pleas. I am of the view that this is the extent of discount each defendant is entitled to.
16. For Charge 1, each defendant is sentenced to 32 months’ imprisonment.
17. For Charge 2, the 1st defendant is sentenced to 20 months’ imprisonment. For the 3rd charge, the 2nd defendant is sentenced to 18 months’ imprisonment.
18. It was held in the case of Tong Fuk Sing, CACC216/1999, that as a matter of principle the sentences imposed on these offences should run consecutively. I see no reason not to follow the principle.
19. Of course I have had regard to totality, so in respect of the 1st defendant, I order 16 months of the sentence imposed on Charge 2 to run consecutively to that imposed on Charge 1, making a total sentence of 48 months.
20. For the 2nd defendant, I order 14 months of the sentence imposed on Charge 3 to run consecutively to that imposed on Charge 1, making a total sentence of 46 months.
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(A. Wong) |
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Deputy District Judge |
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