HKSAR v. ZHUANG XIAOQIANG

DCCC 413/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 413 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of attempted robbery. The offence was committed on 7 February 2013 at the staircase between the 3rd and 4th floor of No. 244 Sha Tsui Road, Tsuen Wan.

2.  The facts surrounding the robbery were that a Mr Fok Chun-man, I will call him Fok, lived at one of the units in the building at No. 244 Sha Tsui Road. 

3.  The victim in this case, a Mr Yim Yin-fei, I will call him Yim, wanted to return a previously borrowed Hang Seng Bank ATM card to Mr Fok.  Yim visited Fok at his residence and left in the early hours of 7 February 2013.  After leaving Fok’s residence, Yim started to walk down the staircase and was confronted by the defendant. 

4.  The defendant was wearing a jacket and a surgical mask at that time and had concealed himself in the staircase.  He grabbed Yim’s neck when he saw Yim and declared robbery.  The defendant was holding in his hand a folding knife with a 7 centimetre long blade, and during a struggle.  Yim sustained certain injuries.  Subsequently, Fok arrived at the scene of the robbery and he and Yim chased after the defendant. 

5.  Yim lost sight of the defendant for a while but later caught sight of him again in the vicinity shortly afterwards.  At that time the defendant had removed his jacket and taken off his surgical mask, therefore Yim was able to see his face.  Yim again lost sight of the defendant and reported the matter to the police.

6.  The police made a search of the area and located the defendant about an hour after the robbery.  When they saw the defendant he was sitting at a staircase of another building.  There was some vomit near him and the defendant and the defendant told the officers that he had heart pain and that he could not breathe.  The defendant fell to the ground and said nothing further and he was taken to hospital by ambulance.

7.  The defendant under caution later at the police station admitted the offence.  He stated that he had been asked by Fok to rob the victim.  He told the police that Fok owed him some money and that Fok had said that if he stole the ATM card Fok would be in a position to repay the debt that was owed to the defendant.  He said that Fok had given him the jacket and told him to buy a surgical mask.  He said that the knife he used was in the pocket of the jacket.

8.  The victim in this case fortunately did not suffer any permanent injury.  He is a right-handed person and he sustained two minor cut wounds and there was immediate swelling and pain over his right wrist as a result of the attack upon him. 

9.  As a result of the persistent swelling he was examined by a doctor again on 18 February and admitted to hospital because of a suspected subluxation of the bases of the 4th and 5th metacarpals.  On examination, there was a right dorsal bony hard swelling over the bases of the metacarpals. However, finger movement was normal and the distal sensation was intact.  A closed reduction was carried out at the bedside and a right side short arm slab was applied.  Open reduction and internal fixation with K wire was done on 21 February. 

10.  Post-operatively neurovascular status of the right hand was normal and he was discharged on post-operation day 1 with a right hand brace.  On subsequent follow-up the wound was found to have healed and the X-ray showed that the alignment had been maintained.  The K wire was removed on 3 April 2013.

11.  The defendant has a clear record.  He was born in China and he came to Hong Kong in 2009 when he was aged 21, he is now aged 25.  He has previously worked as a hair stylist and as a cook and a decorator but was unemployed since October 2012.  I am told that he suffers from heart problems and that he lives in Tsuen Wan together with his mother and younger brother.  Unfortunately, his father passed away earlier this year.  I am also told that his mother does not enjoy the best of health.

12.  I am told that when he was in employment as a decoration worker he earned about $8,000 per month, and since his father’s demise he has been the sole breadwinner of the family.  However, since October 2012, because of unemployment, his ability to earn money has decreased.

13.  As regards the background of the offence itself, I am told that the defendant said that he lent money, $1,600, to Fok, and during the Chinese New Year he needed that money to be repaid and Fok said that if he robbed the victim of the Hang Seng Bank card that he would then later repay him the debt that was owed. 

14.  There is some confusion about what the court has been told as to exactly which ATM card was to be stolen because clearly on the facts as presented by the prosecution, the ATM card had been returned to Fok and subsequently Yim left Fok’s flat.  However, the defence counsel says his clear instructions are that the defendant was intending and was told by Fok to steal from the victim an ATM card.

15.  Placed before the court there is a letter from the defendant in which he says that he has had time in the last 3 months whilst in prison to reflect on his situation and he is now very remorseful and sorry for the anxiety which he has caused to his family.  He said he has fallen in with some bad friends who led him into this offence.

16.  There is also before the court a letter from a Madam Lam, a neighbour of the defendant, who describes the defendant as being a diligent person, who has worked hard to support his family.  She said that he seldom went out, and that before he passed away his father’s health condition had deteriorated and that his mother was also not in good health.  She said she was aware that the family finances had deteriorated, and she was aware that the defendant was very remorseful for this offence.  She has asked for leniency on his behalf.

17.  As regards what has been told to the court on behalf of the defendant, police have made efforts to locate Fok since the defendant’s arrest and since the defendant told the police about Fok’s involvement in this robbery, but those efforts have not so far been successful.

18.  The main points in mitigation in this offence are that, of course, the defendant has pleaded guilty and co-operated with the police.  He has given a full story to the police about his involvement in the matter and also as to the role played by Fok.  The victim has suffered no loss and there were fortunately no permanent injuries sustained by the victim, and the defendant is very remorseful.

19.  It is, in my view, fortuitous that the victim did not sustain more serious injuries given the nature of the wounds inflicted upon him.  He was required to wear a right side short arm slab and a K wire for almost 2 months.

20.  The usual starting point for an armed robbery is a sentence of 5 years’ imprisonment.  In this case, I take the view that there are no aggravating features so I see no reason to increase that starting point. 

21.  I am going to take the starting point of 5 years and reduce it to 40 months to reflect the defendant’s guilty plea.