HKSAR v. NGAI CHUEN

DCCC 983/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 983 OF 2013

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Attempted Robbery". He tried to rob a convenience store but was unsuccessful.

Summary of Facts

2.  In the early hours on 30 August 2013, Madam CHAU (PW1) and Mr. WONG (PW2) were staff members on duty in the Circle K convenience store located at Ground Floor, Tsui Ping Shopping Centre, Kwun Tong ("the Store").

3.  About 2:20 am, PW1 was working at the entrance of the Store.  Suddenly, the defendant approached her pointing at her a knife-like object ("the Object") covered with a piece of cloth and declared robbery in Putonghua.  At that time, the defendant was only wearing a pair of shorts with a bare upper body.  A tattoo on his right chest was visible. His mouth was covered by a piece of cloth.

4.  PW1 was scared.  She shouted and grabbed the Object, which she felt to be a hard chopper-like object.  PW1 retreated into the Store and alerted PW2.  Inside the Store, the defendant declared robbery again but neither PW1 nor PW2 acceded to his demand.  He then fled without taking anything.  The matter was reported to the Police.

5.  PC 6874 (PW3) went to the Store and reviewed the relevant CCTV footage.  He noted the defendant's appearance and the panther-like tattoo on his right chest.

6.  About 2:20 pm on the same day, PW3 spotted a male who looked like the defendant (later confirmed to be the defendant).  He also saw a panther-like tattoo on the male's right chest when he pulled up his upper garment to wipe his body.  PW3 stopped him for enquiry and cautioned him.

7.  PW3 asked the defendant where he was at 2:20 am that day.  He replied "I went to Tsui Ping Circle K convenience store to rob, but was not successful, and I left."  PW3 then asked him if he had used a knife to commit the robbery.  The defendant replied "That was not a knife.  It was imitated by rolling up newspaper.  I planned to scare him."  He further claimed that he was also scared and returned home afterwards.

8.  The defendant was arrested for "Assault with intent to rob".  Under caution, he said in Punti "I don't have money to use, so I went to Circle K to rob.  I regretted it and I will not do it again."

9.  In his video recorded interviews, the defendant admitted the offence and gave a detailed account of the events.  The CCTV footage of Tsui Yu House, Tsui Ping Estate (at which the defendant's residence was located) captured the defendant leaving and returning to the building in the early hours on the day of the offence.  His physical appearance and the timing are consistent with his commission of the offence.

Mitigation & Sentence

10.  The defendant is 32 and has a clear record. Defence counsel Ms. LO informed me that he came to Hong Kong from the mainland in 1996 when he was 14.  The defendant's father deserted the family when the defendant was young.  Ms. LO stressed that the defendant has been a hardworking person until he met his girlfriend in 2012.  He became addicted to midazolam and his life then changed completely.

11.  In mitigation, Ms. LO submitted that according to the relevant witness statements, PW1 and PW2 in fact ignored the defendant's robbery demand made inside the Store, which indicates that they were not that frightened.  Ms. LO further submitted that the defendant was scared too and has been most cooperative with the Police throughout.

12.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs. Being a permanent resident of Hong Kong, the defendant must know how to seek help.  Moreover, the present predicament was created by the defendant.  He only has himself to blame.  A clear message must be conveyed to the general public that robbery is a dead serious crime and the offenders would most certainly be punished by long-term imprisonment.

13. According to the Court of Appeal's decision in HKSAR v ON Ling CACC 386/2004, the present case should not be regarded as an armed robbery; the sentencing guidelines stipulated in MO Kwong-sang v The Queen [1981] HKLR 160 are thus not appropriate.

14. I accept what the defendant did was unsophisticated and, in fact, amateurish. He acted alone at night but was unsuccessful. I also accept that PW1 and PW2 were not all that frightened because they were able to ignore the defendant. I have reminded myself of the Court of Appeal's decision in HKSAR v TING Chiu & another [2003] 3 HKLRD 378 regarding the sentencing of unarmed robberies. Having considered all aspects of this case, I take the view that the appropriate starting point should be 3.5 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 28 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass is therefore 28 months' imprisonment.