HKSAR v. GE XUFENG

DCCC920/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 920 OF 2012

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to three charges before this court. The three charges are: robbery, contrary to section 10 of the Theft Ordinance; possession of an offensive weapon in a public place, contrary to section 33(1) of the Public Order Ordinance; and breach of condition of stay, contrary to section 41 of the Immigration Ordinance.

2.  At just before midnight on 16 August 2012 you rushed towards the victim and grabbed her mobile phone out of her hand.  She shouted, “Robbery”.  You then used your hand to hit the left side of her face and ran away.  She chased after you and kept shouting, “Robbery”.  Soon two passers-by heard her and subdued you.  Very shortly after that, two police officers who were near the location came to the assistance of the victim and the passers-by.  As a result you were arrested.

3.  Upon a body search, you were found to possess an 18 centimetre long knife which was kept in the right front pocket of your track suit.  At that time you had overstayed in Hong Kong.  You were a two-way permit holder from China and had overstayed by five days.  You were permitted to stay in Hong Kong from 6 August 2012 for 7 days.  Therefore, at the time you committed the offence you were an over‑stayer.  The robbery took place at Shanghai Street in Kowloon.  The victim recovered her iPhone after you were subdued. 

4.  You are from mainland China, aged 33 and are of clear record,.  Your solicitor, Mr Simon Wong, has made full mitigation on your behalf and I have taken into account all he has had to say.  You are living cohabiting with your girlfriend in China.  You both have a 4-year-old son.  You are the sole breadwinner of your immediate family and also of your parents. 

5.  You were employed as a factory worker in China. However, in view of your low education you became unemployed and during your unemployment you made a decision to try to go to Macau to make some money from gambling.  However, having lost all your money you then came to Hong Kong as a visitor, on 6 August.  As a result of losing all your money, you then decided to make some quick money by stealing mobile phones to sell them.  That is, you say, the reason why you committed this offence.

6.  You have written me a letter setting out your remorse and have said that you did not intend to hurt the victim.  The knife you said was for your self-defence in Hong Kong this is not a valid defence unless you were in immediate danger.

7.  I accept that the knife was not used in the robbery.  The facts of this case do not fall therefore within the sentencing guidelines of Mo Kwong Sang.  On the facts of this case, there is some authority in Wong Ching Chiu, CACC 302 of 2006, and CACC 174/2003 of HKSAR v Ting Chiu, in which the Court of Appeal have stated that a starting point of 4 years’ imprisonment is appropriate for robbery without a weapon.

8.  In those circumstances, defendant, I shall take that as a starting point for this charge of robbery. 

9.  Defendant, giving you full credit for your plea of guilty that term of 4 years for Charge 1 shall be reduced to 2 years 8 months’ imprisonment. 

10.  On Charge 2, for the offence of possession of an offensive weapon, had I convicted you after trial I would have taken a starting point of 6 months’ imprisonment.  Giving you full credit for your plea of guilty that sentence is reduced to 4 months’ imprisonment. 

11.  On Charge 3, I sentence you to 7 days’ imprisonment.

12.  In considering the principle of totality and the fact that Charge 2 is a separate and distinct offence, I order 2 months of Charge 2 to run consecutive to Charge 1.  The remainder of the sentence and the sentence of Charge 3 is to run concurrent.  Therefore, the total term will be 2 years 10 months’ imprisonment.