HKSAR v. TSE SUI CHUNG

DCCC124/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 124 OF 2009

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

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

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

Reasons for Sentence

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

1.  The Defendant pleads guilty to one count of attempted robbery.

2.  At about 1 am on 19 December 2008, a police officer was conducting an anti-robbery operation at the 7-Eleven convenience store in Kwai Tsing, New Territories.  The police officer laid ambush in the shop.

3.  At about 3.25 am on the same day, the Defendant entered the shop.  At that time, the Defendant was the only customer in the shop.

4.  The Defendant yelled that he would like to buy some cigarettes.  The Defendant approached the cashier of the shop.  He then took out a knife of about 10 inches long from a paper bag in his hand and pointed the knife at the staff of the shop, who was standing in the cashier, and warned that staff not to activate the alarm.

5.  The police officer immediately went out to the cashier of the shop and revealed his police identity.  The Defendant then dropped his knife.

6.  The police officer arrested the Defendant and cautioned him.  Under caution, the Defendant said, “This incident was done by me.”  The aforesaid statement made by the Defendant under caution was subsequently post-recorded in the police officer’s notebook and acknowledged by the Defendant signing on the same day.  At the time of post-recording the statement, the Defendant further added under caution that:

(i)    the Defendant had a quarrel with his wife;

(ii)   the Defendant understood that his wife was drinking with a male;

(iii)  the Defendant could not reach his wife;

(iv)   the Defendant drank some alcohol and took some Zopiclone pills; the Defendant lost his temper and went out with a knife to search for his wife;

(v)    the Defendant felt thirsty and dizzy, and he then entered a convenience store to buy a pack of cigarettes and a pack of lemon tea;

(vi)   the Defendant felt ‘high’, and the Defendant originally intended to take out some money for payment, but he mistakenly took out the knife from the bag and;

(vii)  the Defendant explained to the staff that he was not a robber, and he was then arrested by a police officer.

7.  In the subsequent cautioned interview, the Defendant, amongst other things, further added that he could not recall whether he had robbed the staff of the shop as his mind was not that clear at the time when he was in the shop.

8.  Upon clarification, the Defendant’s solicitor confirms that the defendant did have the intention to steal at that particular time, though he was under the influence of alcohol and drug in the commission of the offence.

9.  The Defendant is aged 36.  He has 6 previous convictions with the last one in 1993.  One of the convictions was similar to the present one, for which he was sentenced to 4½ years’ imprisonment in 1992.

10.  The Defendant is married.  According to the Defendant’s solicitor, the Defendant did not have any financial difficulty at that time and he committed the offence under the influence of alcohol and drug.  The offence was not a well-planned one and no harm was done to the victim.

11.  It is trite law that the influence of alcohol or drug in the commission of an offence is not in general a reason for reducing sentence (see Cross and Cheung, Sentencing in Hong Kong, 5th edition at page 324), and I see no reason to depart from this general principle.

12.  Robbery with the use of a knife is a serious offence.  According to the guideline in Mo Kwong Sang, the appropriate starting point is one of 5 years’ imprisonment.  I adopt the same starting point.  I do not see that there is any other valid mitigating factor apart from the plea of guilty.  Giving the Defendant discount for his plea of guilty, his sentence is reduced to one of 40 months’ imprisonment, and this is the sentence I impose in the present case.