HKSAR v. CHEN TIEN EN

DCCC644/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 644 OF 2011

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Reasons for Sentence

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1.  Defendant pleaded guilty to the charges of attempted robbery and remaining in Hong Kong unlawfully, contrary to section 10 of the Theft Ordinance and section 38(1)(b) of the Immigration Ordinance.

2.  The facts were that in the afternoon of 22 May 2011, police officer spotted the defendant acting furtively at the rear lane of a money exchange shop in Tsuen Wan. 

3.  Upon search, an axe (38 cm long with a blade of 7 cm in length) was found strapped around the defendant’s waist.  Upon enquiry, the defendant admitted coming to Hong Kong unlawfully by crossing the hill in Sha Tau Kok and he had picked up the axe at the hillside and he intended to use it for robbery.  He waited for the shop to open and intended to rob it.   

4.  The defendant aged 24, he has 10 previous criminal convictions with 7 of illegal remaining from 1998 to 2009, where on the last two occasions in 2007 and 2009 he had been sentenced to 2 years’ imprisonment respectively on his own plea as confirmed by Ms Lam for the defendant.  For the other three offences, two of possession of imitation firearm and one of possession of offensive weapon.    

5.  Ms Lam submitted that the defendant is an orphan living alone in China, unemployed and unskilled, solely on economic reason he came to Hong Kong to find opportunity.  Ms Lam further says, the defendant did not brandish nor use the axe and he admitted the offence at the earliest moment.

6.  Robbery is a very serious offence, in R v Mo Kwong Sang [1981] HKLR 610, it was held that the appropriate sentence where the accused was carrying a knife or other dangerous weapon, which he displayed to his victim should normally be 5 years’ imprisonment.  In the present case, the axe in question was large and could be very dangerous when in use.  However, the defendant did not display it nor the offence fully committed. 

7.  Considering all the circumstances, I see it appropriate to adopt a starting point of 3½ years’ imprisonment.  Upon his guilty plea I reduce it to 28 months.  For the charge of illegal remaining, it was the 8^th occasion, the past sentence apparently has no deterrence effect on him.   According to HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, a higher starting point shall be adopted.  Nonetheless, considering the background circumstances, I will also sentence him to 2 years’ imprisonment upon his guilty plea.

8.  Finally, on totality principle, although both offences are separate and distinct.  Given his full cooperation and full admission to the police and all the circumstances, I see the total sentence of two charges for 40 months’ imprisonment appropriate:

Charge 1, 28 months;

Charge 2, 24 months with 12 of which be run concurrently with the 1^st charge;

The total sentence is 40 months’ imprisonment.