HKSAR v. TSE KA WAI

DCCC 979/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 979 OF 2010

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Reasons for Sentence

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Introduction

1.  The Defendant is convicted after trial on the offence of robbery, contrary to section 10 of the Theft Ordinance, Cap.210.

2.  The Particulars of Offence read:

“TSE Ka-wai, on the 2^nd day of July, 2009, at Room A, Flat B, 1^st Floor, On Wing Building, Nos.5-9 Yuen Long On Ning Road, Yuen Long, New Territories, in Hong Kong, robbed CHAU Wing-mui of one mobile phone.”

3.  The facts of the case have been set out in my Reasons for Verdict. In short:

(i) At around 2 or 3 pm on 2 July 2009, the Defendant went to Room A, Flat B, 1^st Floor, On Wing Building, Nos.5-9 Yuen Long On Ning Road, Yuen Long, New Territories (the “Premises”) for sexual service;

(ii) After having sex with the victim and when it was time for the Defendant to pay for the sexual service, the Defendant said he had no money to pay;

(iii)Then the Defendant took out a plastic knife and pointed it at the victim demanding her for her mobile phone and money; and

(iv) As the victim said she had no money, the Defendant took her mobile phone and left.

The Defendant’s previous record and antecedent

4.  Prior to July 2009, the Defendant has 5 previous conviction records, out of which one being common assault, one being possession of dangerous drugs and three being assaulting a police officer. For the offences of possession of dangerous drugs and assaulting a police officer, the Defendant was sentenced to be detained in a Detention Centre.

5.  The Defendant was born in the Mainland in February 1991. He is now 20 years old. At the time of the offence, he was over 18 years of age. He has received education up to Form 4 level. He was released from Detention Centre in March 2008. 

Mitigation

6.  I was informed by defence counsel that the Defendant’s parents had divorced for more than 10 years, that he had a younger brother of 17 years old, that he used to live with his mother and younger brother in a public housing estate, and that his mother was diagnosed with breast cancer in early 2010. A letter from the Defendant’s mother was submitted to this Court today asking for leniency. It is stated in that letter that the Defendant is a filial son, that she (the Defendant’s mother) is suffering from breast cancer, and that her condition would deteriorate anytime so much so that she may not live longer than a year.  

7.  At the hearing on 7^th February 2011, defence counsel asked me to obtain a Detention Centre/Training Centre Suitability Report. On that occasion I already indicated that owing to the seriousness of the present offence, it was unlikely that the Defendant would be ordered to be detained in a Detention Centre or a Training Centre. Nonetheless I acceded to defence counsel’s request and ordered to obtain such a report.

8.  The report is now available. The officer preparing the report considers the Defendant unsuitable for detention in a Detention Centre but suitable for detention in a Training Centre. It was stated in the report that when interviewed by the officer, the Defendant reiterated that he was innocent in this case.  Today, defence counsel informed me that at one stage the Defendant did indicate to the interviewing officer that he was innocent but subsequently the Defendant became remorseful of having committed the present offence.

Sentence

9.  In considering the appropriate sentence, I have considered a similar case Secretary for Justice v Tseung Mang Ka (CAAR 5/2000) in which the Court of Appeal applied Mo Kwong Sang v R [1981] HKLR 610 and considered it appropriate to adopt a starting point of 6 years’ imprisonment for an ordinary case of armed robbery involving an invasion of private premises where the offender was carrying a knife or other dangerous weapon which he displayed to his victim. In Tseung Mang Ka case, the Court of Appeal considered it irrelevant that the private premises were used “substantially for non-domestic purposes”. The Court of Appeal also said that the case involved an invasion of premises by the offender using the pretext of being a genuine customer.

10.  In Attorney General v Yau Wing Hong [1995] 2 HKCLR 214, the respondent was 16½ years old when he committed the offences. The Court of Appeal decided inter alia that although “extreme youth” could be a mitigating factor in cases of armed robbery, it could not be pleaded by persons over the age of 15. The Court of Appeal also applied Mo Kwong Sang and Attorney General v Li Chi Ko [1987] HKLR 1233.

11.  The Defendant is convicted after trial. Having considered the sentencing authorities in Mo Kwong Sang, Tseung Mang Ka and Yau Wing Hong, I will adopt a starting point of 6 years’ imprisonment for the present offence. There being no valid mitigation justifying reduction in sentence, the Defendant is sentenced to 6 years’ imprisonment.