HKSAR v. WU KWOK-HUNG

DCCC117/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 117 OF 2010

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Reasons for Sentence

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1.  The defendant has pleaded guilty to charges 1, 2 and 4 which is three counts of robbery and charge 6 which is one count of attempted robbery. The first three offences occurred in November and December of last year and the attempted robbery was committed on 13 December last year.

2.  The modus operandi of each charge were similar. On each occasion the defendant would approach teenage boys and the defendant would claim to be a triad member and threaten that if he was not given money the victim would be beaten up. The victim would normally be scared and then would surrender the cash on them.

3.  The 1st charge happened at 1 pm on 21 November whilst the victim was in line at the food counter of McDonald Restaurant in San Po Kong. The 2nd charge was at about 5.05 pm on 24 November when the 15 year old victim was walking alone. The 4th charge was in the afternoon of 7 December when the victim, aged 16, was alone waiting for his friend on the footbridge outside the MTR at Kowloon Bay Station. The 6th charge was on 13 December at 2.40 pm where an off-duty police officer noticed the defendant following a male teenager. He saw the defendant shouting fiercely at the teenager telling him to stop and when the teenager stopped, the teenager demanded the teenager to surrender his money and threatened to beat up the teenager if he refused to give the money. The teenager then ran away and at that stage PW5, the off-duty police officer, intercepted the defendant and declared his police identity and the defendant was thus arrested.

4.  Under caution, the defendant admitted all the offences and the defendant was also identified at an identification parade by the victims.

5.  The defendant is aged 33 and has a very poor record. He has some 22 previous convictions and of those 22 previous convictions, five charges were of robbery and also nine offences involving dishonesty. The defendant has been to prison for his robbery offences in the past.

6.  Prior to assessing sentence, I had reviewed the law so far on sentencing for unarmed robbery. It is worth reminding ourselves of the following cases:

7.  The first one is HKSAR v Ting Chiu & Anor[2003] HKLRD 378 where the sentencing Judge on an unarmed robbery had adopted a starting point of 5 years’ imprisonment. The Court of Appeal after reviewing the case of Mo Kwong Sang [1981] HKLR 610, considered that Mo Kwong Sang of course is not appropriate for unarmed robberies. The Court of Appeal there then referred to the case of R v Yau Kwok Tung [1987] HKLR 782 where the defendant in that case approached a couple with another man and then took away money from the victims and in that case the Court of Appeal in a Judgment delivered by then Roberts J said at page 783(i):

“A sentence of 4 years in the circumstances of this case is at the top end of the tariff for robberies where weapons are not displayed.  Nevertheless, the offence took place at night, the victims were frightened and we do not regard it as so manifestly excessive that it would be proper for us to interfere with it”.

The Court of Appeal, after considering submissions by counsel in the case of Ting Chiu then said at paragraph 16:

“In the circumstances, we are of the view that a proper starting point taking into account the robbery in our case being an unarmed one should as a matter of principle be lower than that for an armed robbery of the kind envisaged in Mo Kwong Sang.  However, as it was committed by the two applicants and two other young males at large, the starting point should be 4 years instead of the 5 years as adopted by the Judge.”

8.  Next, we have the case of HKSAR v Lam Ka Hung [2004] CACC294/2003. The Court of Appeal in that case was dealing with a guilty plea to one charge of robbery for which the appellant had been sentenced to 3 years and 4 months. In the appeal in that case the respondent had conceded that the starting point ought to have been no more than 4 years. The facts of that case were that the victim was the subject of a handbag snatch. Her shoulder was pressed down and she struggled with the assailant and fell down. The Court of Appeal then considered that in the case of Lam Ka Hung the applicant had 11 previous convictions, none of those were in any way related to robbery or even violence and in the circumstances of that Lam Ka Hung case the Court of Appeal decided that a 4 year starting point was appropriate.

9.  Then in the case of HKSAR v On Ling [2005] 1HKC 227, a dummy weapon was used in a robbery and the Court of Appeal considered that that would be considered as an unarmed robbery.

10.  Then we come to the case of HKSAR v Chui Chi Hung [2007] 2HKLRD 409 where the applicant in that case had pleaded guilty to a single offence of robbery. The victim was robbed while she was at home lying in her bed. She was dragged out of bed and two blows were given to her. The Court of Appeal there considered that a starting point of 5 years could not be considered manifestly excessive. But what is of note is really what their Lordship said at paragraph 12:

“As this court has said on previous occasions, the factual basis for sentence in any particular case is unique and references to judgments of this court in other cases, even if broadly similar circumstances but in which no guideline for sentence is articulated, is not of any particular assistance.”

11.  Finally, in the most recent case of HKSAR v Li Siu Wah CACC389/2008, the applicant in that case was sentenced to 5 years’ imprisonment for two robberies and a theft involving the same elderly lady victim in the space of a week and the Court of Appeal there accepted that as far as the robberies were concerned, the gravity was at the lowest end of the scale but they also concurred with the sentencing Judge expressing her concern that the applicant in that case had preyed on elderly victims who were unable to fend for themselves and had targeted them knowing they were easy prey. The Court of Appeal there in that case said in paragraph 12:

“In our opinion the 5 year sentence was entirely appropriate.  The applicant has obviously learned nothing from his numerous terms of imprisonment and his persistence in the commission of these particular offences could only have been properly dealt with in the manner adopted by the Judge, namely by imposing partially consecutive sentences.”

12.  Now coming back to the present case, I do consider that the facts of the individual robberies in this case are not in the higher end of the scale and so cannot be considered to be the most serious and therefore I consider that a starting point of 3½ years on each offence of robbery and the attempted robbery is appropriate.

13.  However, in this case there are aggravating factors. The defendant preyed on young boys aged between 15 and 16 and threatened them with the wrath of a triad society and the court have to protect these young teenagers going about their own business from people like the defendant and thus any sentence this court impose will have to carry with it a deterrent effect. Added to that, the defendant has 22 previous convictions, several of them to do with robbery, so one can call him a persistent offender.

14.  The only mitigating factor I can see in this case is the fact that the defendant has pleaded guilty and thus has saved the court’s time and saved the victims embarrassment in coming to court, so he is entitled to the full one-third discount. So having considered all the above, I thus sentence the defendant in the following way: On each of the offences I will adopt the starting point of 3½ years, reduced by one-third to 28 months’ imprisonment.

15.  Having considered the totality principle, I will sentence the defendant in this way:-

On the 1st charge, the defendant goes to prison for 28 months;

On the 2nd charge 28 months, 6 months will be consecutive to the sentence in the 1st charge;

On the 4th charge of 28 months, 6 months will be consecutive to the terms of imprisonment in charges 1 and 2.

And on the 6th charge, similarly, the 28 months’ imprisonment, 6 months will be consecutive to the terms of imprisonment in charges 1, 2 and 4.

So the defendant will go to prison for a total of 46 months.