COURT: The defendant was charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210, and one count of attempted robbery contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. He pleaded guilty to both counts in March this year and was committed for sentence before the Court of First Instance.
The facts are these. On 2 May 2021, the defendant broke into the McDonalds at Choi Yuen Plaza, Choi Yuen Estate, Sheung Shui, New Territories, and attempted to steal inside the McDonalds. On 13 May 2021, the defendant entered a 7-Eleven convenience store in Fanling, New Territories and attempted to rob a staff therein.
In relation to the first incident, that is the burglary, the facts reveal that at around 4.37 am, a Mr Tung, PW1, who was the manager of the McDonalds, returned to the store and found the gate ajar. The manager found that five cash tills inside the McDonalds had been pried open. Upon review of the CCTV footages, it was found that a person wearing a mask, black cap, t-shirt and grey shorts, had pulled open the rolling gate forcibly and gained entry at around 2.41 am. The person then attempted to pry open the cash tills with a ruler and a french fry shovel. Being unsuccessful, that person departed at 2.45 am. It was admitted that the person seen on the CCTV was the defendant, and that it was the defendant who committed this burglary.
In relation to the second incident, the facts reveal that on 13 May 2021, at around 2.30 am, a Mr Chiu, shop assistant of 7-Eleven, was on duty when the defendant, again wearing a mask and the same black cap, black t-shirt and grey shorts, entered the convenience store. On his approach to the cashier, the defendant suddenly took out a broken beer bottle neck from his trousers and pointed it against the shop assistant Mr Chiu, demanding cash from the till.
The shop assistant struggled fiercely, trying to hide in the storage room, but the defendant tried to open the door and pushed against it. The shop assistant therefore picked up an iron stick and began struggling with the defendant again, during which both of them fell to the floor and were injured in the course of the struggle. As revealed in the facts, the defendant punched the shop assistant and bit the shop assistant’s abdomen once. The defendant’s arms were cut by the shattered glass on the ground on the other hand. In the end, the defendant managed to flee from the scene. The entire episode lasted for around two minutes before a report was made to the police.
The defendant’s fingerprint was lifted from the cash till of the convenience store and his DNA was also found on blood swabs lifted from the scene, as well as one saliva swab lifted from a mask left behind at the scene.
The shop assistant was found to be suffering from swelling over his scalp, multiple lacerations and abrasions over his arms, and a human bite wound on his abdomen. The police were able to confirm the defendant’s identity from the fingerprint lifted from the scene of the attempted robbery. Upon comparing the clothing of the two suspects in both incidents, police further suspected that the defendant was the person who had committed the burglary in relation to the first incident.
On 8 July 2021, the police raided the defendant’s home with a search warrant in relation to the second incident, the attempted robbery. Under caution for the attempted robbery, the defendant confessed to his commission of the offence, claiming that he was unemployed due to the pandemic.
In subsequently conducted video-recorded interviews, the defendant made admissions to his commission of both offences.
In relation to the first incident, he claimed that he was drinking and wandering around in Choi Yuen Plaza when he noticed the rolling gate of the McDonalds which appeared to be loosened, and thus pulled it open. Upon entry, he said he had used a metal object that he picked up from the restaurant in an attempt to prise open the cash till, but he had failed to open it.
In relation to the second incident, the attempted robbery, he said during the video interview that on the day in question, he took a taxi to the shopping mall in Fanling and randomly picked up a broken bottleneck from a rubbish bin outside the store. He admitted that he had chosen the subject convenience store to rob the staff there because he noticed there was only one staff working in the shop and the location of the shop was quite remote. He also admitted to have struggled with the staff in the course of the robbery in which the defendant himself sustained injuries. He later fled and took a taxi home.
The Defendant’s Background
The defendant is now 28 years old. He was born in Hong Kong and educated up to Form 3. He has an ex-wife whom he divorced in April 2021. They had a son and a daughter. The defendant was, before the offences, residing with his own father in Ta Kwu Ling, New Territories.
The defendant has one previous conviction for criminal intimidation for which he was sentenced on 29 May 2019 to 6 months’ imprisonment, suspended for 3 years. The present offences are thus committed during the currency of the suspended sentence but towards the end of that period of suspension.
Mitigation
In the mitigation made on his behalf, the court has been informed of the defendant’s background, including his divorce and his upbringing in a broken family. His mother deserted the family when he was only 3 or 4 years old. The defendant has two children himself, a son aged 7 and a daughter aged 6, who have been and are taken care of by his ex-wife, but the children and his ex-wife are maintained by the defendant alone. He has been struggling on providing financially for the family, including his ex-wife and the two children.
The court has also received two letters written by the defendant’s father and a fellow villager of the defendant, who told the court about the defendant’s upbringing, that he is a filial son and the commission of the present offence is a mistake on his part and because of his momentary greed and influence of alcohol.
Before the pandemic, the defendant had been working as a driver or a transportation worker earning about HK$18,000 per month. Before that, he had taken up various jobs including being a construction worker, a chef, garage worker, and devanning worker.
However, it is said that the pandemic hit him hard and with the resulting economic downturn, he became unemployed. At the same time, he has been struggling hard, trying to provide for his ex-wife in terms of her maintenance. Under this financial pressure, he committed the offences out of momentary greed and under the influence of alcohol. Pausing here, the court note that it is accepted that influence of alcohol is not generally a mitigating factor available in the circumstances of these offences (see HKSAR v Chan Yuet Wing, CACC 212/2002 and HKSAR v Lo Sing Chee [2022] HKCA 800).
In any event, I am told that the defendant now regrets his wrongdoing and has indeed indicated his remorse by pleading guilty at the first opportunity. His father also states in the letter that the defendant promised to quit drinking in the future.
Sentencing Principles
Regarding the charge of burglary, the starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see HKSAR v Cheng Wai Kai, CACC 338/2007). This is a starting point which can be adjusted upwards if there are aggravating factors. That said, I accept what has been said on his behalf that the defendant simply saw an opportunity at the McDonalds and took the opportunity to commit the first offence. Viewed as such, this can be said to be an opportunistic burglary. The defendant acted alone. In these circumstances, I would not aggravate the starting point by adjusting the sentence upwards.
Regarding the attempted robbery, the relevant sentencing guidelines have been laid down in Mo Kwong Sang v R [1981] HKLR 610. For robbery involving the display of weapons such as a knife and in the present case a broken beer bottleneck, the starting point should be 5 years’ imprisonment. If physical violence was actually used, the starting point of 7 years’ imprisonment should be considered.
It is submitted on his behalf by Ms Wu that the defendant merely wanted to gain access to the inside of the counter to take the cash, and since the door to the storage room was connected to the cashier counter, the defendant needed to gain access therein. It is said that he had no intention of hurting anyone, but it was only because of the fierce struggle put up by the shop assistant that both the defendant and the shop assistant were injured in the course of that struggle. That said, irrespective of his original intention, the fact is that the defendant did use physical violence upon the shop assistant, and this would place his culpability in the level of sentence for a robbery which involved physical violence, and a starting point of 7 years’ imprisonment is warranted.
Furthermore, the fact that the victims were the staff of convenience stores is an aggravating factor. This was in accordance with binding judgments of the Court of Appeal in HKSAR v Lam Hoi, CACC 105/2016, HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 699, and HKSAR v Wong Cheung [2011] 5 HKLRD 171.
In Lam Hoi the Court of Appeal held that an enhancement of 1 year’s imprisonment was appropriate for that defendant, but emphasised that it should not be taken as a norm for this particular aggravating factor.
As McWalters JA recognised in HKSAR v Ng Ping Tak [2019] HKCA 965, a leave judgment:
“The decision of what quantum of enhancement is appropriate for this particular aggravating factor is an exercise of sentencing discretion by the trial judge.”
See paragraph 16 of that leave judgment.
In the circumstances of the present case, I would exercise my sentencing discretion and enhance the sentence by 6 months to take into account this particular aggravating factor, bringing the sentence for the attempted robbery to 7 years and 6 months’ imprisonment.
The defendant took the earliest opportunity to plead guilty to both offences in this case and therefore I am prepared to grant him a full one-third discount. This would bring the sentence for the burglary count down to 20 months’ imprisonment and the sentence for the attempted robbery count down to 5 years’ imprisonment.
I note that the two charges in the present case involved entirely separate victims and were committed only two weeks apart from each other. Taking into account the totality principle, I consider it appropriate to order part of the sentences to be served consecutively.
In that regard, I do note that the police would not have been able to identify the defendant as the perpetrator of the burglary count but for the defendant’s confession in his video-recorded interview, given that the defendant was wearing a cap and his face was covered and could not be seen, notwithstanding that he was wearing the same or similar clothing on both incidents. In passing, I note that the police had only obtained a warrant in relation to the attempted robbery offence when they went up to arrest the defendant.
In these circumstances, I would impose the following sentences on the defendant: For Charge 1, the burglary count, I will sentence the defendant to 20 months’ imprisonment; for Charge 2, I would sentence the defendant to 5 years’ imprisonment. I would order 8 months of the sentence for Charge 1 to be served consecutively with that for Charge 2. I will not activate the suspended sentence.
In the premises, the defendant you will go to prison for a total of 5 years and 8 months.