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DCCC 180/2020
[2020] HKDC 690
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 180 OF 2020
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| Present: |
Mr Yaddy Cheung, solicitor on fiat, for HKSAR
Mr Fu Chong Sang instructed by Charles Yeung, Clement Lam, Liu & Yip, assigned by the Director of Legal Aid, for the defendant |
REASONS FOR SENTENCE
1. The defendant 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 summary of facts admitted by the defendant today. In summary at around 4:50 a.m. on 10 December last year the defendant went to the “Circle K” convenience store at shop no. 4 on the ground floor of Yat Tung Shopping Centre in Tung Chung.
3. At the time staff member Ms Chan was working behind the checkout counter. Another staff member was working inside the storeroom.
4. The defendant, wearing a dark cap, a surgical mask, orange shirt, black jacket and blue jeans, entered the store carrying a recycle bag. The defendant asked for two packs of Marlboro Red cigarettes.
5. After Ms Chan took the packs of cigarettes the defendant took out a chopper from the recycle bag. A photograph of the chopper has been submitted to court.
6. The defendant pointed the chopper at Ms Chan declaring robbery and demanded that all the money be taken out. Ms Chan feeling scared took all the money from the cash register totalling $10,390.
7. The defendant put all the money in the recycle bag and left. As he was leaving the defendant warned Ms Chan not to scream otherwise he would chop her to death.
8. The robbery was captured on CCTV installed inside the store. The CCTV footage has been played in court. The defendant pointed the chopper close to Ms Chan’s neck causing Ms Chan to step back. The defendant continued to point the chopper at Ms Chan until she had taken all the money out of the cash register. Fortunately, Ms Chan did not suffer any injuries.
9. A report was made to the police. The defendant was arrested the following day in the lobby of where he lived. Inside the defendant’s home the police recovered three packs of Marlboro Red cigarettes; $6,700 cash; one chopper and clothing that resembled that worn during the robbery.
Mitigation
10. In passing sentence, I have carefully considered the oral and written submissions of Mr Fu, including that the defendant, aged 59, has long term mental disorder and was diagnosed with cancer in 2017[2].
11. I have read the mitigation letters written by the defendant’s son and the defendant’s sister who describe the defendant as a good father and ask for leniency. The defendant’s sister is in court today to show her support.
12. I have also read the letter written by Mr Leung a social worker with the New Life Psychiatric Rehabilitation Association which has provided counselling services to the defendant since 2014. Mr Leung, who is also in court today, asks for leniency on behalf of the defendant and explains that the defendant committed the robbery shortly after receiving a letter that his CSSA payments would be reduced.
13. The defendant cannot be given credit for a clear record having convictions for robbery, theft and burglary. I take into account that the robbery was almost forty years ago when the defendant was only 19 and that his last conviction for assisting in an unlicensed massage establishment was in 1991 nearly thirty years ago.
Guidelines
14. In R v Mo Kwong Sang[3] the Court of Appeal laid down guidelines for armed robberies. The appropriate sentence for an ordinary case of armed robbery where a knife or other dangerous weapon is carried and displayed is 5 years’ imprisonment.
15. In his oral submission Mr Fu submits that a 5 year starting point is appropriate and submits by way of illustration three cases where a 5 year starting point was held appropriate[4].
Aggravating factor
16. I am satisfied robbery of a “Circle K” convenience store is an aggravating factor. In my view staff of convenience stores, particularly those working in the early hours of the morning, are vulnerable to this type of robbery and require protection.
17. Deterrent sentences are required. See for example HKSAR v Kwok Cheuk Man[5] as applied in HKSAR v Wong Cheung[6], HKSAR v Lam Hoi[7] and HKSAR v Ng Ping Tak[8].
18. In HKSAR v Asim Hafiz Tahir Mahmood, one of the three cases referred to the court by Mr Fu, I was the sentencing judge[9]. The robbery took place in a 7-Eleven convenience store in the early evening. I regarded the fact that the defendant was a torture claimant and that the robbery was an invasion of business premises as aggravating factors and enhanced the starting point of 5 years’ imprisonment by 6 months.
19. I passed sentence before the Court of Appeal judgment inHKSAR v Lam Hoi, a case concerning robbery of three 7-Eleven convenience stores[10]. The sentencing judge treating convenience stores as business premises took an initial starting point of 6 years which he enhanced by 6 months to allow for the aggravating factor the robbery was of a convenience store.
20. The Court of Appeal held that convenience stores were not business premises and that the judge should have simply enhanced the starting point to allow for the aggravating factor of the premises being convenience stores.
21. The Court of Appeal went on to discuss what the quantum should be for this aggravating factor. The court held that inthe circumstances of the case a starting point of 6 years’ imprisonment was appropriate for each of the three robberies[11].
22. This was followed by HKSAR v Ng Ping Tak where the court refused leave to appeal against sentence where the sentencing court had adopted 6 years’ imprisonment as the starting point for each of two robberies of convenience stores committed by two robbers as part of a joint enterprise.
23. I am satisfied having viewed the CCTV footage that a starting point of 6 years’ imprisonment is appropriate. Giving the defendant full credit for his plea of guilty reduces the sentence to 4 years’ imprisonment.
Restitution
24. The defendant agrees that the sum of $6,700 found on him when he was arrested is to be returned to the convenience store. The defendant’s family have paid into court the balance of the money stolen in the sum of $3,690. In recognition of full restitution having been made I reduce the sentence by 2 months to 3 years and 10 months’ imprisonment.
Ill-health
25. In HKSAR v Chiu Peng, Richard the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence. The court said the justification for a discount in sentence by reason of mental illness was as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind[12].
26. The medical reports submitted by Mr Fu reveal that both before and after the commission of the offence the defendant was not suffering from psychotic symptoms and had been all along stable since his last psychiatric admission in 2011[13].
27. Whilst sympathetic to anyone suffering from mental illness I am satisfied in the circumstances there should be no further discount on account of the fact the defendant has long term mental illness.
28. Similarly, while sympathetic to anyone suffering from cancer, I am satisfied this provides no ground to further reduce the sentence. I note from the sister’s letter that the defendant’s condition is presently stable.
29. I am satisfied that the defendant will receive all necessary medical treatment while serving sentence and that the prison authorities will closely monitor the defendant’s condition. Should there be a change in the defendant’s condition he may always apply to the Executive for clemency.
30. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 10 months’ imprisonment and ordered to pay $10,390 compensation to Circle K: $6,700 from the monies seized on arrest and $3,690 from the monies paid into court.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] See the medical reports submitted by Mr Fu. The date the defendant was diagnosed with cancer is stated in the mitigation letters written by the defendant’s son and the defendant’s sister.
[3] [1981] HKLR 610.
[4] HKSAR v Andrianiaina Adrien Luck Yu Pau CACC 129/2016; HKSAR v Asim Hafiz Tahir Mahmood CACC 283/2016 and HKSAR v Chan Sha Sha CAAR 3/2018. This is a judgment in Chinese only. Mr Fu confirming that his reliance on this case was only by way of illustration of the 5 year starting point I did not require an agreed translation to be prepared.
[5] [2005] 3 HKLRD 699.
[6] [2011] 5 HKLRD 171.
[7] CACC 105/2016.
[8] CACC 52/2019.
[9] CACC 283/2016
[10] CACC 105/2016.
[11] See §§50-58 of the judgment.
[12] [2002] 1 HKC 401.
[13] See the medical reports of Cheng, Alan Ka Ho dated 26 February 2020 and 15 July 2020.
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