HKSAR v. FUNG JUN TAI

DCCC700/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 700 OF 2012

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Reasons for Sentence

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1. The defendant has pleaded guilty today to one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap.210

2. The particulars are that he robbed an 80-year-old victim, an elderly lady, of one necklace on 6 July this year.

3. The facts are that this victim in early afternoon was walking along Maidstone Lane, Ma Tau Wai.  The defendant tried to snatch her necklace from behind.  The victim despite her elderly age fought back; fought back, by that, I mean she grabbed hold of her pendant to try and keep it.  However, she was then pushed to the ground by the defendant.  She still had the pendant in her hand, unfortunately it broke in two.

4. The defendant nevertheless still took the necklace, the pendant and ran away.  The victim cried for help and some passers-by chased the defendant.  In total, three passers-by caught up with the defendant.  When they subdued the defendant, he was holding a necklace in his hand.  The police arrived and arrested the defendant for robbery.

5. Under caution, he made a full admission.  He told the police that he had robbed the victim because he had no money.  He asked for a chance. 

6. The victim was sent to hospital and suffered injuries.  Her most serious injury being a fracture to her left hip. 

7. The necklace that was stolen was worth HK$8,000.

8. The definition of a robbery is where a defendant steals and immediately before or at the time of doing so, and in order to do so, uses forces on a person.  In this case the defendant pushed over PW1 despite her trying to hold onto her necklace. 

9. A snatching is where personal items are stolen or taken but without the element of force required of a robbery.  So this case is not a snatching scenario, it is a robbery.  It is more serious.

10. The facts here show a street robbery, an opportunistic robbery where no weapon is displayed by a lone robber without accomplices. 

11. Defendant has a clear record in Hong Kong.  He has pleaded guilty today, that is his best mitigation.

12. He, defendant, is 45 years old.  The background of the defendant is that when he was 20 years old, he was sentenced to a term of imprisonment in Thailand for over 20 years.  He spent 20 years in Thailand in prison.  He returned to Hong Kong in 2007 to serve the balance of his sentence. 

13. I have been told that after his release from prison in Hong Kong, he worked between 2007 and 2009.  Unfortunately, in 2009 he was made redundant and lost his job.  From then till now he has been unemployed.  He has tried to re-train by attending Labour Department courses but to-date and certainly until the date of the robbery he has remained unemployed. 

14. I have seen a letter of mitigation from the defendant and I am told that the defendant is extremely remorseful.  He had tried to imagine if it had been his own mother, elderly mother, how he would feel.

15. I have been told that this offence was committed due to financial desperation.  He had no money and was unable to borrow any money.  He wanted to or needed to pay the rent for his parents with whom he was living.  On that particular day he saw the victim and chose to rob her of her necklace.

16. A robber would choose their victim and often would choose either the young or the old or a woman alone.  In this case the victim was an elderly lady; as I have said, she was 80 years old.

17. And it is entirely foreseeable that if an 80-year-old was pushed over, she would suffer serious injury.  In this case she did suffer serious injury, a fractured hip.  I am told, luckily she has recovered.  But the choice of victim could be construed as an aggravating factor. 

18. I have been referred to several authorities by defence counsel.  However, in my view, it is not appropriate to sentence this case as if it was a snatching case, it is a robbery.  In fact, the maximum sentence for a robbery would be life imprisonment. 

19. I have considered several authorities including Mo Kwong Sang v The Queen [1981] HKLR 610, The Queen v Yau Kwok Tung [1987] HKLR 782 and, more recently, The HKSAR v Ting Chiu [2003] 3 HKLRD 378. 

20. What I learned from these authorities is that a 4 years’ starting point is appropriate where the robbery is a street robbery and no weapons are used by a lone robber. 

21. Defendant, please stand up.  I do consider the authorities I have just referred to, the defendant’s clear record in Hong Kong, the defendant’s plea today, mitigation put forward and, lastly, the facts of this case.  I do find a 4-year term of imprisonment as a starting point appropriate. 

22. Although I find that there could be aggravating factors the court can consider, because of the defendant’s clear record, I do not intend to increase this starting point. 

23. The defendant is entitled to a discount of one-third for his plea today.  Ultimately and according to this discount, the defendant is sentenced to 2 years and 8 months for this offence.