HKSAR v. LAU YUK PANG

DCCC 944/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 944 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant (aged 53 years) (male) appeared before me and pleaded guilty to two counts of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

2.  The 1st charge avers that the defendant on 11 August 2013, at the rear lane, Nos. 162-168 Castle Peak Road, Yuen Long, New Territories robbed Ip Ching Ho of one necklace.

3.  The 2nd charge avers that the defendant on 12 August 2013, outside the Church of Christ in China Chun Kwong Primary School, Chung Sing Path, Yuen Long, New Territories robbed Ip Siu Hung of one necklace with one pendant.

Facts

4.  Both robberies took place in the daytime.  In both cases, the two male victims were wearing a necklace with a pendant.  The value of the stolen property was HK$10,500 in the 1st charge and $14,400 in the 2nd charge respectively.  The victim of the 1st charge suffered economic loss as a result of the robbery as the defendant sold the stolen property right after the robbery and lost all the money in gambling whereas the victim of the 2nd charge was fortunate in that the defendant was quickly intercepted by an off-duty police officer and the stolen property was recovered from his person.

5.  In the 1st charge, the defendant tried to snatch the victim’s necklace from behind.  The victim of the 1st charge then used both of his hands to hold onto the pendant but the defendant used force to overcome this victim’s resistance, broke the necklace from the pendant and took the necklace away.

6.  In the 2nd charge, the defendant admitted that he had used a cutter and placed it at the right side of the victim’s neck and the necklace was then taken from behind.  After the victim had shouted “robbery,” an off-duty police officer just passed by in the vicinity, heard the scream of the robbery and joined the pursuit and finally intercepted and subdued the defendant.  When the defendant was intercepted, he had the cutter in his right hand.  It was described as about 5 inches long with 2 inches of the blade already extended out from the handle.  After the defendant was arrested, he admitted the offence under caution.

Criminal record and background of the defendant

7.  The defendant is 53 years old.  He only received Primary 6 education in mainland China.  He is divorced and previously he worked as a construction site casual worker earning around $10,000 per month.  He has two children.  The son is now 17 years old while the daughter is 14 years old but they live together with the ex-wife and the defendant lives alone.

8.  The defendant only had two previous convictions relating to unlawful gambling.  The defence has invited the court to consider the defendant as a first offender.

Mitigation

9.  In mitigation, the defendant’s solicitor, Mr Lau, described the 1st charge as an unarmed robbery.  He said that the defendant used his bare hand to snatch the necklace from the victim behind and he submitted that the victim in this case was not threatened or intimidated and very little physical force had been applied.  Mr Lau described the acts of the defendant as “only a step up from theft or snatching” and the step up was that he used force to overcome the victim’s resistance and then he took the necklace.  He acted alone and did not commit the offence together with any other persons.  Also, the victim did not suffer any injury in the course of the robbery.

10.  In Charge 2, Mr Lau said his client had finally admitted using the cutter, albeit only after the court ordered that the case should be adjourned for a Newton hearing to decide if he had used the cutter or produced the cutter during the course of the robbery.  Mr Lau emphasised however the fact that during the course of the robbery, the cutter was not displayed to the victim.  In this case, the defendant also acted alone and not with other robbers.  The defendant also suffered no injury and also luckily in this case, the property was recovered.  After the defendant was arrested, he had rendered full co-operation with the police and he had made frank admission to both charges.

11.  As far as the sentencing is concerned, in the 1st charge of the unarmed robbery, Mr Lau submitted that there is no sentencing tariff for unarmed robbery.  He had referred the court to the Court of Appeal decision in HKSAR v Chan Sin Leung CACC 48/2006 and urged the court to follow the decision in that case where similar facts were said to be relied by the Court of Appeal.

12.  In the 2nd charge, Mr Lau properly referred the court to the tariff sentence as described in the case of R v Mo Kwong Sang [1981] HKLR 610 in relation to armed robbery.  Finally, Mr Lau asked the court to consider the principle of totality when passing the two sentences for each charge and the overall criminality of the matter.

Sentencing considerations

13.  In relation to the 1st charge, I agree with the submission made by Mr Lau that the first robbery is an unarmed robbery and looking at the facts of this case, it can also be properly described as “a step up only from theft or snatching”.  It is true that there is no tariff for this kind of unarmed robbery case and each case must turn on its own facts.

14.  I was asked to consider the facts of Chan Sin Leung (supra) where the fact of the robbery in that case was very similar to the present case.  In Chan Sin Leung (supra), the robber had snatched the necklace from the victim and failed at first.  He kept pulling the necklace with additional force and as a result, a degree of pain was caused to the victim’s neck and the victim had suffered minor injuries.  The District Court had used 3 years as a starting point for this robbery charge and the Court of Appeal has said that the sentence cannot in itself be described as in any way manifestly excessive.

15.  I agree that a similar factual scenario was also present in this case and for this reason, I would also adopt 3 years as a starting point for the 1^st charge.

16.  As for the 2^nd charge, it is of course an armed-robbery case and as said, the sentencing tariff as laid down in the famous case of R v Mo Kwong Sang (supra) applies.  In that case, it has been said that where weapons are used or displayed, the starting point should be 5 years.

17.  It makes no difference whether the cutter was displayed in front of the victim or whether it was only placed in the neck of the victim when the robber was standing from behind.  No doubt in both scenarios, the victim must have been subjected to great fear and was intimidated.

18.  In this case, however, I agree that no actual violence was used although the victim no doubt was put in great fear.  In the absence of any further aggravating features in this case, I agree that I should adopt 5 years as the appropriate starting point in this charge.  The defendant pleaded guilty which, in my view, is the only proper and effective mitigating factor.  Therefore, for both charges, the sentence shall be further reduced by one-third.  For the 1^st charge, it will be reduced from 3 years to 2 years and for the 2^nd charge, reduced from 5 years to 40 months.

Totality

19.  Because of the principle of totality, I have to consider the overall criminality of the matter.  In the end, I decided that in the 1^st charge, only 12 months of the sentence would have to run consecutive to the 2^nd charge, making a total sentence of 52 months’ imprisonment and the balance of the sentence in the 1^st charge shall run concurrently with the sentence on the 2^nd charge.