HKSAR v WAN YICK TAK

DCCC 744/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 744 OF 2010

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of robbery of one mobile phone belonging to CHANG Chun-yeung, contrary to section 10 of the Theft Ordinance, Chapter 210.

2.  Full particulars of the robbery are set out in my verdict delivered today.  In summary at 23.45 hours on the 4th June this year CHANG Chun-yeung(PW1) took a break from work to have a smoke in the rear lane of No. 18 Fa Yuen Street.  The defendant together with another male entered the rear lane and grabbed hold of PW1’s hair.  The defendant punched PW1 in the mouth and chest while the other male continued to hold PW1’s hair and press his arms to prevent him from moving.  The defendant then searched PW1’s pockets and took away his mobile phone.

3.  After pushing PW1 to the ground the defendant fled together with the other male.  PW1 chased after the males and was eventually able to catch the defendant, whilst the other male escaped.  The police were called and the defendant arrested.

4.  Although the defendant said he had a knife, no knife was displayed or found.  I therefore proceed to sentence the defendant on the basis this was an unarmed robbery (see HKSAR v ON ling CACC 386/2004).  The starting point for unarmed robbery is generally no more than 4 years imprisonment, see for example R v YAU Kwok-tung [1987] HKLR 782 as applied in HKSAR v TING Chiu [2003] 3 HKLRD 378; HKSAR v LAM Ka-hung CACC 294/2003 andHKSAR v TSANG Wai-ming CACC 288/2006.  Each case is however to be decided upon its own particular facts and circumstances. 

5.  Taking into account that this was a robbery at night, in a rear lane, by two males and the degree of violence used did not result in any serious injury to PW1, I am satisfied the proper starting point after trial is 3 years and 6 months imprisonment.

6.  The defendant is however properly to be regarded as a persistent offender having appeared in court 17 times amassing thirty two convictions, ten of which are for robbery, assault with intent to rob or attempted robbery.  By reason of the defendant’s persistent offending I increase the starting point to 4 years imprisonment (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830). 

7.  There are no grounds to reduce the sentence.  The defendant is sentenced to 4 years imprisonment.

8.  The defendant is now serving a total of 14 months imprisonment, 8 months for wounding and 6 months for theft, imposed by the Kowloon City Magistracy on the 5th October.  I have been provided the facts admitted by the defendant when he pleaded guilty to these charges.  The facts show both offences were committed prior to the present robbery.   

9.  The defendant was arrested for the wounding offence on the same day of the offence, namely the 26th April, and then placed on police bail.  The robbery was therefore committed whilst on police bail.  Commission of offences on bail is an aggravating feature of sentence.  I am satisfied in these circumstances had the two offences been dealt with at the same time wholly consecutive sentences would have been imposed.

10.  The theft was committed in May, however, the defendant was only arrested on the 22nd June, after the commission of the present robbery.  Giving consideration to totality of sentence I am satisfied had all three offences been dealt with at the same time, 4 months of the sentence in the theft charge would have been made consecutive to the robbery and the wounding and 2 months concurrent making a total sentence to be served by the defendant of 5 years imprisonment.  I am satisfied a total sentence of 5 years imprisonment properly reflects the defendant’s criminal culpability on all charges. 

11.  The defendant is sentenced to 4 years imprisonment, 3 years and 10 months consecutive to the sentences now being served by the defendant and 2 months concurrent.