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DCCC 900/2020
[2021] HKDC 507
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 900 OF 2020
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| Present: |
Ms Choice Choi, counsel on fiat, for HKSAR |
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Ms Elizabeth Herbert, instructed by Chaudhry Solicitors,
assigned by the Director of Legal Aid, for the defendant |
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REASONS FOR SENTENCE
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1. The defendant, a Form 8 recognizance holder, pleads guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance[1].
2. Full particulars of the offence are set out in the amended summary of facts admitted by the defendant today.
3. In summary at around 3:53 p.m. on 8 July 2020 Mr Leung Chan, aged 85, was sitting outside Ground Floor, No. 175 Tai Nan Street in Sham Shui Po resting. Mr Leung was holding a recycle bag containing sixty-seven packets of cigarettes valued at around $1,200.
4. Suddenly the defendant walked past and snatched the recycle bag with both hands. Despite Mr Leung holding his bag tightly he was unable to prevent the defendant from taking away the bag. Mr Leung gave ‘chase’ and shouted robbery. The defendant was quickly intercepted by a passer-by who returned the recycle bag to Mr Leung. The police arrived and arrested the defendant.
5. Ms Choi confirms that Mr Leung did not suffer any injuries.
6. CCTV from a nearby shop captured the robbery. I have had the opportunity of watching the CCTV footage. Although Mr Leung cannot be seen sitting on the ground, the CCTV footage clearly shows the force used by the defendant to pull the bag from Mr Leung’s hands. After the robbery Mr Leung, who is wearing a striped T-shirt and shorts, is seen getting up and with the aid of a walking stick walking in the direction in which the defendant left.
7. Three screen captures from the CCTV footage and photographs of the street have been submitted to court.
Mitigation
8. In passing sentence, I have carefully considered the oral and written submissions of Ms Herbert, including that the defendant, aged 36, came to Hong Kong from Pakistan in 2007[2].
9. I take into account the defendant has no previous convictions for robbery or violent crime.
Starting point
10. No knife or weapon having been used the proper basis for sentence is that which is appropriate for an unarmed robbery. The starting point for unarmed robbery is generally no more than 4 years’ imprisonment[3].
11. Ms Herbert has referred the court to four cases of unarmed robbery where the starting point was between 3 years and 4 years’ imprisonment[4]. I have considered these cases. Each case is to be decided on its own facts and circumstances.
12. I accept the submission that the robbery can be regarded as opportunistic and that only minimal force was used[5]. Ms Herbert also asks the court to note that Mr Leung was himself also arrested for unlawful possession of dutiable goods[6].
13. I take into account the circumstances of the robbery which took place during the day and in a public place and that the defendant acted alone. Mr Leung however is to be regarded as vulnerable being eighty-five years of age. Fortunately, Mr Leung was not injured.
14. I am satisfied that the proper starting point after trial is 2 years and 6 months’ imprisonment.
Commission of offences by refugees or torture claimants
15. The defendant is a Form 8 recognizance holder. The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security[7].
16. Ms Herbert submits that by reason of the relatively minor nature of what was an unsophisticated and opportunistic robbery of cigarettes, the court may view that the offence does not have the effect of tarnishing Hong Kong’s reputation for order and security[8].
17. I disagree that robbery of an eighty-five-year old is to be regarded as minor. All persons are entitled to feel safe on the streets of Hong Kong. I enhance the starting point by 3 months to 2 years and 9 months’ imprisonment.
18. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 10 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] See §6 of the written submissions in mitigation.
[3] See for example R v Yau Kwok Tung [1987] HKLR 782 cited by Ms Herbert.
[4] R v Yau Kwok Tung [1987] HKLR 782; HKSAR v Ting Chiu [2003] 3 HKLRD 378; HKSAR v Chan Sin Leung CACC 48/2006 and HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563.
[5] See §§13, 16 & 17 of the written submissions in mitigation.
[6] Ms Choi informed the court the case is still outstanding Mr Leung having failed to attend court on 18 January 2021. Ms Choi also informed the court that Mr Leung has previous convictions for unlawful possession of dutiable goods and was subject to a suspended sentence.
[7] See HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013 cited by Ms Herbert.
[8] See §16
of the written submissions in mitigation.
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