HKSAR v. MASE RANDY BENJAMIN V

DCCC 426/2021

[2022] HKDC 30

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 426 OF 2021

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REASONS FOR SENTENCE

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1.  Mr Mase pleaded guilty before me to one charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap 210. Particulars are that he, on 17 February 2021, at a flat in Good Luck House, Nos 78-84 Portland Street, Mong Kok, Kowloon, in Hong Kong, robbed Ren Liyan of cash of $1,000 Hong Kong currency.

Facts admitted by Mr Mase

2.  Ms Ren (aged 50)  resided in a flat in Good Luck House, 78-84 Portland Street, Mong Kok.

3.  At around midnight on 16/17 February 2021, Ms Ren was sitting alone in a park near her home.  Mr Mase came over to chat with her.  Since it was cold and Ms Ren enjoyed the conversation, she invited Mr Mase to her home to chat. After entering her home shortly after midnight, Mr Mase produced an object of about 15 cm long and pointed it at Ms Ren.  He asked her if she had any money. Ms Ren was scared and took out $1,000 from her purse.  Mr Mase robbed her of the cash and ran downstairs.  Ms Ren gave chase but abandoned the pursuit after some distance.  She then called the police.

4.  Around 9 pm the same day, in Yau Ma Tei, police arrested Mr Mase.

5.  During a subsequent cautioned VRI, Mr Mase stated in fluent Cantonese:-

(a)  On 17 February 2021, a woman with whom he chatted in a park invited him to her home;

(b)  As he was going to the woman’s home, greed took over him and he intended to rob her; he picked up a wooden stick from the ground and placed it in his pocket;

(c)  After entering the woman’s home, he pointed the stick at the woman and demanded for money;

(d)  He told the woman because of the pandemic, he had no work or money;

(e)  He told the woman he would not hurt her;

(f)  After taking $1,000 from the woman, he ran away; and

(g)  He had used up the money in food and games.

Criminal record

6.  Mr Mase has two previous convictions including a theft in 2009 and a gambling in March 2021 (the latter offence committed on the night of the present arrest).

Antecedents

7.  Mr Mase is aged 42 (41 at the time of the offence), educated to F5 level in Hong Kong, unemployed but has previous been a bar manager.  Mr Mase is married and resided in private housing in Hung Hom with his wife and daughter.

Mitigation

8.  Mr Andrew Bullett of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Mase.  The following is a summary of the mitigation submissions.

9.  Mr Mase, a Philippines national, was born in Hong Kong and is a permanent resident here.  His wife works as a receptionist and his daughter (20)  is a university student and teaches part-time.

10.  At the time of arrest, Mr Mase had been unemployed for about a year, having lost his position as a bar manager because of Covid-19.

11.  Mr Mase developed a gambling problem which led to debts and depression. He committed this offence unplanned and out of character.  He attributed this to stress and worry over his gambling losses.  Hoping to recoup some of his losses, he committed the offence.  No violence was used and he assured the victim he would not hurt her.  She was sufficiently unshaken to have pursued Mr Mase down the stairs as he departed.

12.  The usual starting point for robbery is 5 years: Mo Kwong Sang v The Queen [1981] HKLR 610.  However, shorter sentences are appropriate where no dangerous weapon is used: HKSAR v Ting Chiu [2003] 3 HKLRD 378 – starting point 4 years where 4 men robbed a couple out walking, one laying hands on the husband but without other violence and with no weapon; HKSAR v Au Chi Hang, AR2/2005 [2006] 2 HKLRD 310 – count 1 starting point 2½ years where 4 men chased and robbed 2 schoolboys; count 2 starting point 4 years where shortly afterwards the same men threatened a victim with a 3 foot long stick and robbed him.

13.  It is submitted that here a small stick should not be treated as a dangerous weapon; no violence was used and Mr Mase acted alone.

14.  Mr Mase offered to make restitution to Ms Ren.

15.  Mr Mase’s remorse is indicated by his frank admissions on arrest and his guilty plea.

16.  The court is urged to disregard Mr Mase’s minor theft conviction and to treat him as being of good character and to pass a lenient sentence.

17.  Mr Bullett submitted that a starting point of not more than 2½ years might be appropriate.

18.  Upon enquiry by the court, Mr Bullett submitted that there was no invasion of domestic premises because Mr Mase was invited to Ms Ren’s home.  It was also submitted that even after Mr Mase picked up a stick on the way, there was still no definite plan to rob.

19.  Mr Bullet submitted a total of 3 mitigation letters and one certificate of treatment for gambling problems on behalf of Mr Mase.  The general contents of the three letters written respectively by Mr Mase himself, his daughter and a reverend are that Mr Mase committed the offence due to gambling and depression, that Mr Mase was a loving and responsible father and husband, and that a lenient sentence is asked for to facilitate his early re-integration into society.

Sentence

20.  Robbery is a serious offence.

21.  I have ascertained from the prosecution that the current whereabouts of the victim Ms Ren is unknown.

22.  There is no indication that the 15 cm (approx)  wooden stick used in the robbery has been recovered.  With the limited information available, there is a doubt as to whether it qualifies as a dangerous weapon as envisaged in Mo Kwong Sang.  However, one should not ignore the fact that Mr Mase used the stick to threaten a lone woman in her own home in the middle of the night after gaining entry there by deceit.  I am of the view that Mr Mase’s formation of the intention to rob whilst on the way vitiated the initial invitation to visit made by Ms Ren.  There was therefore an invasion of domestic premises during the night which was recognized as an aggravating factor in Mo Kwong Sang.

23.  In the premises, I accept Mr Bullett’s submission that a lower starting point than the 5 years’ guideline may be adopted.  Taking all relevant factors including the aforementioned aggravating factor into consideration, I adopt a starting point of 4 years and because of Mr Mase’s plea, I will give him the usual 1/3 discount.

24.  An effective clear record counts for little in a case as serious as a robbery with a weapon used.  An offer to make restitution is not a mitigating factor unless the restitution is actually made.  There are no other effective mitigating factors that I could see which can call for any further discount in sentence.

(Mr Mase, please stand)

25.  The sentence on Mr Mase is therefore 32 months’ imprisonment.