HKSAR v. KWOK LAI-WAI

DCCC 802/2019

[2020] HKDC 691

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 802 OF 2019

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REASONS FOR SENTENCE

1.  The defendant faces 3 charges of "Fraud" (Charges 1, 3 and 5), 3 charges of "Attempted fraud" (Charges 2, 6 and 7), 1 charge of "Robbery" (Charge 4) and 1 charge of "Failure to produce proof of identity on demand" (Charge 8).

2.  He pleaded guilty to Charges 1, 3, 4, 5 and 8. The prosecution applied to leave Charges 2, 6 and 7 in the court file; not to be proceeded against him without leave of court.  I granted the application.

Summary of Facts

3.  The modus operandi of Charges 1 and 3 is almost identical.  Someone placed food delivery orders by phone and alerted the restaurants that high value banknotes will be used for payments.  The defendant showed up in the vicinity of the delivery addresses.  He made up phony excuses to obtain from the deliverer both the food and change prepared in advance without presenting the high value banknotes.

Charge 1

4.  Mr. Mak (PW1; aged 55) was a delivery worker of S.F. Express (Hong Kong) Limited.  On 1 May 2019, he received an order from McDonald's to deliver food to Room 9B, 9^th Floor, Knight Garden, Tak Hing Street, Yau Ma Tei.  The total price of the order was $98; and the order had a request to prepare change for payment by a $1,000 note.  The order was made by phone number 5426 9664 ("Phone Number 1").

5.  When PW1 arrived at Room 9B, no answered the door.  After about 1 minute, the defendant opened the door of Room 9A claiming to the be person who placed the order.  He provided Phone Number 1 to PW1 and told PW1, inter alia, that he did not have any money with him.  The defendant turned around and appeared to be calling his wife to get money.  After a while, the defendant asked PW1 to give him the food and $902 change first; he would give PW1 the $1,000 note later. PW1 complied.

6.  Upon receiving the food and change, the defendant closed the door of Room 9A.  PW1 later entered Room 9A through its back door and found no one inside.

Charge 3

7.  Mr. X (PW3; aged 42) has an IQ of 59.  His intelligence is equivalent to an 11-year-old.  He and Ms. Cheng (PW4) were employees of the McDonald's restaurant situated at Metro Regalia in Tai Kok Tsui ("the Metro Regalia McDonald's").

8.  At 3:17 p.m. on 2 May 2019, the Metro Regalia McDonald's received an order to deliver food to Room 2, 5^th Floor, No.494 Reclamation Street.  The total price of the order was $72; and the order had a request to prepare change for payment by a $500 note.  The order was made by phone number 9708 1950.  After assembling the items, PW4 put $428 in a plastic bag ("the Money Bag") and gave it to PW3.

9.  Upon reaching No.494 Reclamation Street, PW3 found the metal gate of the Ground Floor building entrance locked.  He called the phone number on the delivery order, but was told no order was placed.  The defendant then approached PW3 and convinced PW3 that he was the one who placed the order.

10.  The defendant took PW3 to "Tong 5^th Floor", Nos.490-492 Reclamation Street.  He told PW3 that he did not bring any keys or money.  The defendant then appeared to be calling his wife.  He told PW3 that his wife, who had money, was downstairs and that he would go down to find her.  The defendant asked PW3 to give him the change and wait for him at where they were.  He would return with the payment.  PW3 gave $400 to the defendant, who then left.

11.  PW4 eventually went to fetch PW3.  She found him outside No.494 Reclamation Street around 5:30 p.m. the same day.  PW3 positively identified the defendant as the culprit in a subsequent identification parade.

Charge 4

12.  Mr. Huang (PW5; aged 26) was an employee of the Metro Regalia McDonald's.  About 2:30 p.m. on 3 May 2019, PW5 received an order to deliver food to Room B, 9^th Floor, Kwok Cheung Building, Shanghai Street, Mongkok.  The total price of the order was $70; and the order had a request to prepare change for payment by a $500 note.  The order was made by phone number 6719 0792 ("Phone Number 4").

13.  Upon arriving at the delivery address, PW5 called Phone Number 4 and was told to wait at the flat's entrance.  About 10 minutes later, the defendant exited the lift on the 9^th Floor corridor.  He told PW5 that he was the person who placed the order.  The defendant said he had no money, but asked PW5 to give him the $430 change first.  The defendant claimed that he would go inside the flat to find his brother, who was in the washroom, to get the $500 note. PW5 refused.

14.  The defendant said it would take 1 to 2 hours to wait for his brother and insisted on PW5 giving him the $430 change first.  The defendant claimed that he would go downstairs to ask his boss for $500.  PW5 refused again.

15.  The defendant pressured PW5 and promised to tip him, but PW5 did not give in.  The defendant became angry and threatened to complain against PW5.  PW5 moved towards the staircase in order to leave.  Suddenly, the defendant stood in front of PW5 and used his right hand to grab PW5's left shoulder with force. PW5 was scared.  He tried to escape from the defendant's grip, but was unsuccessful.  PW5 said he was only doing his job and begged the defendant to let him go.

16.  The defendant repeated his request but PW5 still refused.  Suddenly, the defendant used his right fist to punch PW5's nose.  PW5's glasses flew off and his nose started to bleed.  The defendant then moved backward and placed both fists next to his cheeks like a Thai boxer.  Worrying that he would be assaulted again, PW5 gave $430 to the defendant, who took the money and left.

17.  PW5 was later sent to the hospital for treatment.  He sustained nasal bridge abrasion.

Charge 5

18.  Mr. Chan (PW6) was an employee of the Circle K Convenience Store situated at Nos.42-44 Kweilin Street, Sham Shui Po ("the Store").  About 6:40 a.m. on 4 May 2019, he was on duty manning the cash registers.

19.  The defendant, who was not a Circle K employee but wearing a Circle K staff jacket, entered the Store.  He asked PW6 if the manager was present. PW6 replied "No".  PW6 asked the defendant who he was.  The defendant claimed that he was sent by the Prince Edward branch manager to help out.  The defendant also told PW6 to organize the stock and he would man the cashier counter.  PW6 complied and the defendant assumed control of the cash registers.

20.  The defendant left the Store after about 1 minute.  PW6 checked the cash registers and discovered that one of the monitors showed a new Alipay add-value entry in the sum of $2,000.  The cash registers, however, did not have the corresponding sum of cash.

Charge 8

21.  About 5:15 p.m. on 5 May 2019, DPC 13838 (PW9) stopped the defendant outside No.39 Mongkok Road, Mongkok for enquiry.  He asked the defendant to produce proof of his identity.  The defendant failed to do so; he provided his Hong Kong Identity Card number to PW9 only.

Admissions

22.  The defendant was arrested by the Police on 5 May 2019.  In his video recorded interviews, the defendant admitted that he had committed the criminal acts in Charges 1, 3, 4 and 5 as described above.  For Charges 3, 4 and 5, the defendant also identified himself being captured in the respective CCTV footage.

Mitigation & Sentence

23. The defendant is 26 and has 6 criminal records, which included 10 "Theft" offences and 1 "A.O.A.B.H." offence. He is single and resides with his father. Defence counsel Mr. Tam informed me that the defendant was a casual delivery worker earning $500 per day.

24. In mitigation, Mr. Tam submitted that the defendant has no previous record of "Fraud" or "Robbery" offences. He committed the present offences due to financial problems. Regarding Charge 4, no weapons were used or displayed and PW5's injury was not serious. For Charges 1, 3 and 5, the scam employed was not sophisticated. The defendant picked up the Circle K staff jacket in Mongkok long time ago.

25. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

26. The defendant is no stranger to theft-related offences. He got into trouble with the law as young as 13 years old. The court has dealt with him by way of probation, Detention Centre, Training Centre and even a Community Service Order. He should have learned all his "lessons" by now.

27. I will deal with Charge 4 first. A clear message must be conveyed to the general public that robbery is a dead serious crime and that the offenders would most certainly be punished by long-term imprisonment. I accept that the offence in Charge 4 should not be regarded as an armed robbery; thus the sentencing guidelines stipulated in MO Kwong-sang v The Queen [1981] HKLR 610 are not applicable. I have borne in mind the Court of Appeal's decisions in HKSAR v Ting Chiu & another [2003] 3 HKLRD 378 and HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137 regarding the sentencing of unarmed robberies. Based on the amount of cash stolen and the injury sustained by PW5, I consider a starting point of 4 years' imprisonment to be just and appropriate. With the timely guilty plea, the sentence is reduced to 32 months. I sentence the defendant to 32 months' imprisonment for this charge.

28. For Charges 1, 3 and 5, the defendant's acts were repulsive and despicable. I adopt a starting point of 9 months' imprisonment for each charge. With the timely guilty plea, the sentence for each charge is reduced to 6 months. I sentence the defendant to 6 months' imprisonment each for these 3 charges.

29. Bearing in mind the totality principle, I consider a global starting point of 57 months' imprisonment appropriate for Charges 1, 3, 4 and 5. With the timely guilty pleas, the overall sentence is reduced to 38 months. To achieve this, I order the sentences to run in the following manner :-

(i) 2 months in Charge 1 consecutive to Charge 4;

(ii) 2 months in Charge 3 consecutive to Charges 1 and 4; and

(iii) 2 months in Charge 5 consecutive to Charges 1, 3 and 4.

30. The maximum penalty for Charge 8 is a fine at Level 2 (i.e. $5,000[1]). In my view, it is unnecessary to lay this charge against the defendant. I will impose a nominal fine of $200, to be paid forthwith.