HKSAR v. YUNG HOI MING

DCCC 851/2017
[2018] HKDC 101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 851 OF 2017

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

1.  The defendant pleaded guilty to one charge of robbery and not guilty to one charge of theft. Particulars of the robbery charge are that he on 9^th July 2017 robbed a Ms Lin of one necklace with pendant and one wallet containing cash of $160 near the ground floor at No.326 Reclamation Street.

2.  The defendant was convicted of the robbery, while the theft charge was ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Summary of facts

3.  At around 4:30pm on 9^th July, Ms Lin arrived at the ground floor of 326 Reclamation Street, about to enter the building where her home was when she heard someone calling “Hey Miss” from behind her.

4.  Ms Lin turned around to see the defendant approaching with a fruit knife in his hand. The defendant pointed the knife at Ms Lin’s neck and told her to give him all her belongings.

5.  Ms Lin was scared and handed over her wallet, which had $160 cash inside. The defendant then snatched the necklace that she was wearing from her neck and fled. The necklace and the attached pendant are worth around $4,800.

6.  Ms Lin was not injured and she reported the robbery to the Police.

7.  CCTV footage from the vicinity captured the defendant following Ms Lin prior to the robbery, as well as the defendant fleeing the scene alone afterwards.

8.  About 15 days later on 24^th July, the defendant was intercepted and arrested at the junction of Fa Yuen Street and Nullah Road. Under caution, the defendant admitted to the robbery and that he had sold the necklace for $3,000.

9.  Police investigation revealed that the defendant pawned the necklace for $3,200 on the same day of the robbery, using his own identity card.

10. The defendant confessed to his crime in the subsequent video recorded interview, confirming that he committed the robbery.

Previous convictions

11.  The defendant has one spent conviction for the possession of a dangerous drug. This is not to be regarded as an aggravating factor for the purpose of sentencing.

Mitigation

12.  The defendant is 36, he was born in Mainland China and educated up to Form 2 level there. He came to Hong Kong in 1997. He was working as a decoration worker earning around $15,000 per month before his present arrest.

13.  The defendant is of generally good health. He has two daughters who are living with his wife.

14.  Ms Tam for the defendant pointed out that the only mitigating factor is his timely guilty plea. She also pointed out that the defendant has no previous similar record.

15.  Ms Tam referred to the sentencing guidelines in the case of Mo Kwong Sang and invited the court to grant the defendant the full one third discount after applying the guideline sentence.

Sentence

16.  The maximum sentence on conviction upon indictment for robbery is life imprisonment.

17.  The Court of Appeal laid down the following sentencing guidelines in the case of R v Mo Kwong-sang, CACC 359/1981:

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.”

18.  Applying the said guidelines, the appropriate starting point in the present case where the defendant pointed a fruit knife at the victim’s neck is 5 years’ imprisonment.

19.  Although the victim was at the entrance of the building where she lived, she was still on the street when the defendant robbed her. As such, there was not yet an invasion of private premises.

20.  Other than the brandishing of the knife, there was no physical violence applied on the victim and she suffered no injuries.

21.  There being no other aggravating factors, I adopt the said 5-year starting point.

22.  The only mitigating factor is the defendant’s timely plea of guilty, for which a one-third discount is granted.

23.  The defendant is, therefore, sentenced to 40 months’ imprisonment.