HKSAR v. CHAN CHUN NAM

DCCC 859/2017

[2018] HKDC 429

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 859 OF 2017

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

1.  The defendant pleaded guilty to one charge of robbery. Particulars are that he on 11^th May 2017 outside no.86 Tai Nan Street in Mongkok robbed one Wang Xiaohua.

Summary of facts

2.  At about 3:25 am on 11^th May 2017, 37-year old Ms Wang was walking along Tai Nan Street in Mongkok on her way home when she felt someone pulling her handbag from behind.

3.  Ms Wang immediately turned around and saw a man wearing a mask tugging at her handbag.

4.  Ms Wang tried to hold on to the bag but was unsuccessful. The man snatched the handbag and fled. Ms Wang gave chase while shouting about the robbery.

5.  Mr Ho and other passers-by joined the chase but were unable to intercept the man.

6.  When Mr Ho was walking back to Tai Nan Street to see what he could do for Ms Wang, he picked up a wallet that belonged to the defendant. Inside were the defendant’s Hong Kong identity card, home return permit, driving licence, bank cards, membership cards and two photos of his.

7.  The wallet, together with its contents, were handed over to the Police.

8.  Police officers arrived at the defendant’s residence in Kwun Tong shortly. The defendant was not there so the Police asked his father to contact him.

9.  The defendant surrendered to Mongkok Police station at about 7:35 am the same morning.

10.  The defendant admitted under caution that he was the person who snatched the handbag, which he had discarded on Apliu Street. The defendant had taken the cash inside. He gave the necklace to her girlfriend. He robbed because he was unemployed and his girlfriend was pregnant.

11.  A house search was conducted at the girlfriend’s home. Cash of $3,500, a gold coin and the necklace, all belonging to Ms Wang, were found on top of the cabinet in the girlfriend’s bedroom.

12.  Closed circuit television footages show the defendant robbing Ms Wang. They also show where and when the wallet fell out of the defendant’s trousers pocket when he was fleeing.

13.  The contents of Ms Wang’s handbag are as follows: 1 wallet, cash of about $7,000 and RMB$500; 2 ATM cards; 1 credit card; 2 octopus cards; 1 HKID card; 1 document of identity for visa; 1 gold coin valued at $7,000; 1 gold necklace with jade pendant valued at $26,000; 1 bunch of keys; and 1 smartphone valued at $3,000.

Previous convictions

14.  The defendant has 1 spent conviction for arson dated 18^th November 2011, when he was sentenced to 12 months’ probation. The defendant was 14.

15.  The defendant was last convicted for two charges of theft on 2^nd April 2015 when he was 18 years old. He was sentenced to 12 months’ probation.

Mitigation

16.  The defendant was 19 when he committed the offence. He is now 20. Given his age, I ordered a background report to be prepared on the defendant.

17.  In gist, the report paints a sad picture of a young person who had to deal with a father who suffered from anxiety. The defendant’s suspected Dyslexia and Attention Deficiency conditions were never properly dealt with because of his father’s rejection for the defendant to be treated.

18.  The defendant did finish his construction skills training and managed to find work. Unfortunately he was injured in an industrial accident in June 2016. He has since been suffering from post-traumatic stress disorder and been turning to nicotine and vodka as means of escaping his problems and to alleviate boredom.

19.  Counsel for the defendant Ms Yuen related the defendant’s disagreement with certain parts of the report. The defendant claims that he does not recall ever receiving warning letters when he was subject of the previous Probation Orders, as suggested in paragraph 5 of the background report.

20.  The defendant also claims that he never said that he had committed the present offence out of greediness and under the influence of alcohol. The reason he committed the offence is as what was said on his behalf on the previous occasion by Ms Yuen, that at the time of finding out that his then girlfriend was pregnant, he was concerned and did not know what to do to prepare for the future.

21.  These are serious allegations against the Probation Officer who prepared the report. Ms Yuen suggests that a further and ‘more fair’ report be prepared, where the issues of the defendant’s former girlfriend’s baby and the defendant’s good work attitude should be dealt with in a more positive way.

22.  I find that even if assuming that can be done, that is to say, to order a ‘more fair’ report, given my view that those matters complained of by the defendant do not affect my consideration of the sentence, no more time and taxpayers’ money need to be expended.

23.  As I mentioned above, what I rely on in the report is the unfortunate background of the defendant and that despite the less than ideal relationship with his father, the defendant had worked hard to stand on his own feet.

24.  The contents and positive comments in the letters written by the defendant, the defendant’s employer, secondary teacher and family members will all be duly considered. There is no unfairness towards the defendant even if no further report is called.

Sentencing considerations

25.  The maximum sentence on conviction upon indictment for robbery is life imprisonment.

26.  Robbery is an excepted offence[1], therefore, s.109A of the Criminal Procedure Ordinance , Cap.221 does not apply[2], which means that although the defendant is under 21 at the time of being sentenced, the court is not required to be of the opinion that no other method of dealing with the defendant is appropriate before considering a term of imprisonment.

27.  Ms Yuen for the defendant very helpfully prepared a mitigation bundle. She relies on 3 cases to suggest that the proper starting point in the circumstances should not be more than 3 years’ imprisonment.

28.  In the case of HKSAR v Chan Sin Leung, CACC 48/2006, the applicant pleaded guilty to three charges of theft and one charge of robbery. The offences all involved the applicant riding a bicycle past an unsuspecting female victim and snatching her necklace from her neck. In relation to the robbery charge, it took place in the morning two days after the first theft. In the commission of this snatching, the applicant’s first attempt failed and the necklace did not come off. The applicant kept pulling on the necklace causing a degree of pain to the victim’s neck and left her with red marks.

29.  For the robbery offence, the trial judge adopted a 3 years starting point. The final total sentence for all 4 charges imposed by the trial judge was four and a half years after plea.

30.  The question that the Court of Appeal had to consider was the application of the totality principle. Although the eventual sentence was reduced, the sentence in relation to the individual offences was found to have been appropriate.

“In relation to the robbery offence...it might be said that the facts were not a great deal different from those of the theft charges and that the resulting term for that individual charge was high; nonetheless given the aggravating feature to which we have referred it cannot be said to be in itself manifestly excessive.”

31.  The aggravating feature referred to is the criminal record of the 27- year old applicant, which included a series of convictions for theft, attempted theft, robbery and assault with intent to rob.

32.  In the case of HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563, two defendants pleaded guilty to one joint charge of robbery. There the appellants followed a 17-year old female student when she returned home at 5am. One of the appellants kept a lookout outside while the other entered the lobby of the building where the student lived. She was pushed in the back as she waited for the lift while talking on her iPhone and her phone snatched away.

33.  The trial judge took into consideration that the victim was only confronted by one robber, that no weapons were used, that the robbery was committed in a public area; that no injuries resulted and that both the appellants had a clear record. A starting point of 3 years and 3 months’ imprisonment was adopted.

34.  The Court of Appeal found that the starting point was appropriate and their appeals against sentence were dismissed.

35.  In the case of HKSAR v Lam Ka Hung, CACC 294/2003, the 57- year old victim was on her way home to her flat on the 3^rd floor of the building at around 7:15 pm when the applicant snatched her handbag. The applicant ‘pressed down’ on her shoulder and she struggled with the applicant. They fell to the ground and the victim sustained a minor abrasion to a finger. The victim’s shouts brought help and the applicant was apprehended.

36.  The trial judge adopted a starting point of 5 years’ imprisonment. The respondent conceded on appeal that the proper starting point ought to have been no more than 4 years in the circumstances.

37.  The Court of Appeal referred to the earlier case of R v Yau Kwok-tung [1987] HKLR 782 where it was said that a sentence of 4 years’ imprisonment for a robbery where no weapons are displayed is “at the top end of the tariff”.

38.  The Court of Appeal did not find the applicant’s criminal record as an aggravating factor since none of the convictions were in any way related to robbery or even violence. They found that a proper starting point, which both parties accepted, was 4 years’ imprisonment.

39.  In the said case of R v Yau Kwok Tung, the applicant was sentenced to 4 years’ imprisonment for one charge of robbery after trial.

40.  There the robbery took place in the early hours when the applicant and another man approached the husband and wife victims on the street demanding to see their identity cards. The husband was searched and $300 taken. One of the robbers snatched a necklace from the wife’s neck, but returned it when told it was a fake.

41.  On application for leave to appeal against the sentence, the Court found that the 4-year sentence in the circumstances of the case was at the top end of the tariff for robberies where weapons are not displayed. Nevertheless, they found that since the offence took place at night, that the victims were frightened, they did not regard the sentence manifestly excessive and refused to interfere with it.

The present case

42.  I turn now to the present case.

43.  The robbery took place at 3:25 am. The victim was a woman on her way home alone. The experience of being robbed must have been traumatic for her.

44.  The defendant did not use any weapons, nor did he attack the victim in any way. There might not even have been any physical contact between them.

45.  The defendant surrendered himself to the Police just 4 hours after the robbery. This must, however, be looked at in light of the fact that the defendant realized that he had lost his wallet and had reported the loss at Shatin Police station at around 4 am, which was just 75 minutes after he committed the robbery. He must have known that the Police will be on to him.

46.  In any event, given the circumstances, I find that the defendant’s commission of the robbery is at the lower end of the scale of seriousness.

47.  Having taken into consideration the relatively less serious circumstances of the defendant’s robbery, but also bearing in mind the sentences in the above discussed cases, I find that a proper starting point in the present case is that of 3 years’ imprisonment.

48.  Although the defendant is not of clear record, this is his first robbery offence. I do not regard his criminal record as an aggravating factor and will not enhance his sentence on this basis.

49.  There are no aggravating features in the defendant’s commission of the robbery.

50.  As for mitigating features, first of all, I must stress that it is never an excuse to commit robbery, or any criminal offence, for the reason that one does not know how to deal with one’s girlfriend’s pregnancy.

51.  Secondly, although I do sympathize with the various difficulties the defendant had to face during his formative years as disclosed in the background report, and I do appreciate his work ethics, I find that these personal circumstances do not warrant any further reduction in the sentence that would not already be subsumed by the one-third discount granted to him for his plea of guilty.

52.  The defendant is, therefore, sentenced to 2 years’ imprisonment after plea.