HKSAR v. CHEN RONGWEI

DCCC 195/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.195 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of Robbery[1]. Particulars are that he on 24^th January 2013, at the staircase of 1^st floor, Lok Yuen House, Mongkok robbed a Loo Ka Yan of one mobile phone.

Facts

2.  Ms. Loo was walking home along at 11:05pm on 24^th January, carrying with her a “Samsung Galaxy S III” mobile phone (valued at about $4,800).

3.  When she was walking up the stairs at the 1^st floor of Lok Yuen House on her way home, the defendant suddenly grabbed her neck from behind and tried to snatch her phone. Ms. Loo managed to turn around and saw the defendant while he was grabbing her right hand. The defendant bit her right forearm, grabbed her hair and pushed her onto the ground. The defendant then snatched her mobile phone and fled. Ms. Loo gave chase and shouted for help.

4.  Two passers-by heed her call for help and joined in pursuit. They eventually intercepted and subdued the defendant with the phone still in his hand. A few other passers-by who witnessed the incident also went up to help and stood guard over the defendant waiting for the Police to arrive.

5.  PC13968 arrested and cautioned the defendant at about 11:15pm. The defendant said under caution that he intended to sell the phone he robbed.

6.  Ms. Loo received medical treatment and was diagnosed to have suffered from tenderness on the right side of her head and abrasion on her right forearm with bite mark. She was treated and discharged on the same day.

Previous convictions

7.  The defendant is of previously clear record.

Mitigation

8.  The defendant is 28, he finished his Form 3 education in China and came to Hong Kong in 2006. He got married but later separated with his wife. The defendant’s parents are retired while his younger brother is a student in mainland China.

9.  The defendant was a cook before he was arrested, earning about $13,000 per month. He would contribute $5,000 to support his family. He is the sole breadwinner of the family.

10.  I am told that the defendant has a clear record in mainland China as well. He is extremely remorseful and had admitted the offence immediately. The defendant committed the offence out of momentary greed and wishes to apologize to the victim.

11.  Mr. Chan for the defendant explained that at the time of the robbery, the defendant was very nervous and had bit the victim’s forearm in order to get free. He had no intention to harm her.

12.  Mr. Chan rightly pointed out that no weapons were used in the robbery and the mobile phone that was stolen was immediately recovered. I was also told that the defendant was in the mainland military service for 2 years, from 2003 to 2005, before he came to Hong Kong. Although one would except someone who had been in military service to have more self-discipline, I would not hold this against the defendant.

Sentence

13.  The maximum sentence under s.10 is that of imprisonment for life. Section 10 is an excepted offence under schedule 3 of the Criminal Procedure Ordinance, Cap.221.

14.  In the case of Mo Kwong Sang v R [1981] HKLR 610, the Court of Appeal set down guidelines for sentencing in armed robbery cases. Although there are no arms used in our present case, there are aggravating factors identified by the Court in that case that are applicable in our present case.

“12. We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

13. If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

14. If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

15. These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.”

15. The aggravating factors applicable to our present case include the invasion of private premises since the robbery took place in the staircase of Lok Yuen House; the use of physical violence when the defendant grabbed his victim’s neck, bit her forearm, grabbed her hair and then pushed her onto the ground and the fact that the robbery took place during the night when the woman victim was walking home alone.

16.  On the other hand, no weapons were used in the robbery and the defendant did not have any accomplices.

17.  In the recent case of HKSAR v Ku Kwok Wai and another CACC 14/2012, the victim, a 17 year old female student was robbed by the 2 applicants while standing in the lift lobby waiting for a lift inside a building in North Point. The robbers had followed her from Kings Road. One of them waited at the entrance of the building as a lookout while the other entered the premises and pushed the student from behind and then snatched the mobile phone that she was just using and then ran off. The victim shouted “robbery” while the applicants fled. They were quickly intercepted and arrested by Police officers nearby.

18.  The Court of Appeal upheld the learned trial judge’s starting point of 3 years and 3 months’ imprisonment.

19.  One of the cases that was considered by the Court of Appeal was the case of HKSAR v Lam Ka Hung CACC 294/2003. There “the female victim was the subject of a handbag snatch at about 7:15 pm on 10^th May 2003 on the 3^rd floor of a residential building as she was making her way back to her flat. After her shoulder had been “pressed down”, she then struggled with her assailant. Both of them fell to the ground. The victim sustained a minor abrasion to a finger.

20.  As a result of the victim's shouts, the applicant (aged 31) was apprehended. He shortly afterwards confessed and said that his decision to rob had arisen from the length of time he had been unemployed.”

21.  The Court of Appeal considered the 5 years starting point adopted by the learned trial judge at first instance too high. Although the applicant had multiple convictions, none of them were related to robbery or even violence. The Court of Appeal found that an appropriate starting point would have been that of 4 years’ imprisonment.

22.  I find that the facts in that case are almost on all four with our present case. Both the defendants committed the crime alone, preying on women who were walking home by themselves at night and were robbed when they were nearly home, with our case’s victim suffering slightly more violence having been bitten on her arm.

23.  Unlike the applicant in Lam Ka Hung, the defendant is of clear record. Although the Court of Appeal did not consider the multiple convictions of the applicant an aggravating factor, it does not necessarily mean that the clear record of our defendant should be ignored.

24.  The defendant targeted a lone woman walking home at night and robbed her at the staircase. She was almost at her home and no doubt this robbery will have serious and long lasting psychological effect on her.

25.  Although there is no tariff sentence for unarmed robberies, I find that given the similarity in the factual circumstances and the degree of violence used, yet taking into consideration the clear record of the defendant, an appropriate starting point in our present case is that of 3 years and 9 months’ imprisonment.

26.  The defendant is therefore sentenced to 30 months’ imprisonment upon a one third discount for his guilty plea.

[1] Contrary to s.10 of the Theft Ordinance, Cap.210.