HKSAR v. TAI WAN HOI

 DCCC449/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 449 OF 2009

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Reasons for Sentence

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1.  The defendant has been convicted on his plea of one charge of robbery committed on 31 March this year near the Sheung Shui Swimming Pool in Sheung Shui, New Territories.

2.  He accosted the victim, a lady who was walking alone on her way to pick up her daughter from school, in the early afternoon on the day in question, just before 3 pm.  The defendant grabbed her neck from behind, pointed a knife of approximately 6 inches in length at her waist and said to her, “Don’t move.  Robbery.”  At this juncture a vehicle passed by and the victim was bold enough to shout out “robbery” whereupon the defendant immediately stopped what he was doing and fled empty-handed.

3.  Shortly afterwards he was seen acting suspiciously by some police officers.  He was intercepted and admitted the offence under caution saying, “Ah sir, I took a knife to rob because I had no money.  Please give me a chance.”

4.  Subsequently in an interview the defendant elaborated that he had found a knife in a market stall in Sheung Shui earlier on that same day and he had picked it up and concealed it under his clothes with the intention of using it to commit robbery. 

5.  The defendant is 43 years of age.  He has a poor record including previous convictions for robbery in 1983, 1991 and 1995 when he was sentenced to 3 years 9 months’ imprisonment for robbery.  Although the offence is not relevant for the purposes of sentence, I note that he was sentenced to 9½  years’ imprisonment in 1999 for trafficking in dangerous drugs and I am informed that he was released after serving that sentence in September 2005.  He did get some casual jobs after that but he eventually lost the last job he had which meant he could not pay the rent, so he lost his public housing as well. 

6.  It seems that he had very little money at that time and I accept that he committed this offence because of financial pressures that he was under. 

7.  The guideline case for sentencing for the offence of armed robbery is still R v Mo Kwong Sang [1981] HKLR 610 in which the Court of Appeal stated that the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victim, should be 5 years’ imprisonment after trial.

8.  I note that the present offence is attempted robbery; the defendant is liable to receive up to the same sentence that he would receive for a robbery which was successfully completed.  The appropriate sentence must always depend on the individual facts of the case at hand.  In a sense the moral blameworthiness is really more or the less the same for an attempted robbery as it is for a completed robbery. 

9.  However in my view he is entitled to some credit at least for having desisted from the robbery when the victim shouted out, even if the reason he did so was because he feared being apprehended.

10.  It is always a very serious matter for a person to use a knife even if it is only displayed, since the threat is always inherent in that situation that he is going to use it, which causes terror to the victims.

11.  The fact that the defendant had little money at that time and was under financial pressure is of course no excuse whatsoever for committing such a serious offence as this, nor is it mitigating.  People have to find lawful ways to deal with their financial pressures, as they do all the time. 

12.  The fact is that the defendant did desist and flee as soon as the victim shouted out for help.  No actual force or violence of any sort was used by him and nothing was stolen.  In all the circumstances I have adopted slightly reduced starting point of 4½  years’ imprisonment after trial.

13.  I accept that the defendant has been completely co-operative with the police.  He has admitted the offence ever since his arrest.  He is entitled to the full one-third discount normally afforded for pleading guilty at the first opportunity and for his cooperation.  That discounts the starting point to 36 months’ imprisonment.  In all the circumstances of the case, I discount that by a further 2 months and impose a sentence of 34 months’ imprisonment on the defendant.