HKSAR v. NG TUNG KAM

DCCC 894/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 894 OF 2016

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

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

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

REASONS FOR SENTENCE

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

1.  The defendant (male) (aged 62) appeared before me this morning and pleaded guilty to a single charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

2.  According to the Amended Summary of Facts which the defendant agreed, on 29 July 2016 at about 7:30 pm, two shopkeepers, Miss Fu and Mr Kam, were working at the Emperor Watch and Jewellery (HK) Company Limited located at Hennessy Road, Wan Chai when the defendant entered the shop.  He was holding a pair of pliers which was about 25 cm in length on his hand.  The pair of pliers were new and was still properly packed in its original packing.

3.  The defendant suddenly approached the shopkeepers and said for several times that he wanted to rob.  Both shopkeepers asked the defendant to leave but he ignored.  He then proceeded to open the packing of the pliers and held the pliers up and intended to break the glass of the showcase.  The two shopkeepers immediately stopped him and removed him from the shop.

4.  A report was made to the police.  Police officers later arrived and arrested the defendant for the offence of robbery.

5.  Under caution, the defendant said he committed robbery since he had no money. 

Criminal record and the background of the defendant

6.  The defendant had one criminal record of assault occasioning actual bodily harm back in 1990 for which he was fined $700.  He was born in Hong Kong with only a Primary 2 level education.  He was divorced in 2014 with no children.  Although he had two younger sisters, they have no communication whatsoever. 

7.  In mitigation, I was told that the defendant used to work as a waiter but his employment was terminated in July 2015.  With no income, he intended to apply for CSSA from the Social Welfare Department.  Subsequently, the defendant moved to Shenzhen and lived there and living on his own savings.  I was told that on the day in question, he just came back from Shenzhen after spending all his savings and intended to apply for the CSSA.

8.  Mr Dickson Pang, the solicitor appearing for the defendant, in his mitigation stressed the fact that the defendant had not used any violence against both shopkeepers in the course of the robbery.  He accepted that the defendant had held a pair of pliers, but he maintained that the defendant did not use the same to threaten the two shopkeepers.  On the other hand, Mr Pang was of the view that the two shopkeepers merely thought that the defendant was of an unsound mind and they just ignored this defendant when he first indicated that he wanted to rob the jewellery shop.

9.  Mr Pang also referred to me a number of authorities and was trying to argue that in fact the present case was an unarmed robbery, in the sense that the pair of the pliers could not be viewed as dangerous weapon such as a knife as mentioned in the case of Mo Kwong Sang[1]. He asked the court to give the defendant the full one-third discount on account of his plea and try to be as lenient as possible.

Sentencing considerations

10.  The Court of Appeal had, as early as in 1981, laid down the guidelines for armed robbery in the case of Mo Kwong Sang (supra).  In that case, Roberts CJ had said that, “By the word ‘armed’ in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed.”

11.  The Court of Appeal had suggested that 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 5 years.

12.  Normally, when a robber in the course of robbery had displayed a dangerous weapon to the victim such as metal rods, water pipes, knives, or even screwdrivers, the court normally treat those objects as dangerous weapons and will sentence according to the guideline as laid down in Mo Kwong Sang (supra).  The reasons being that those robbers by using those dangerous weapons are obviously trying to threaten and pressurize the victim in order to make the victims subdue to their demands.

13.  In this case, the object in question is a 25-cm pair of pliers.  In my judgment, this is of course a dangerous weapon.  If using it in the course of the robbery, potentially, it will cause harm and dangers to the victims as serious as a hard object such as a knife.

14.  That said, however, in this particular case with its particular facts, I do accept that the defendant had never used the pair of pliers and held it to threaten directly against the two shopkeepers.  He had only held it up with the intention to break the glass of the showcase.  What is more, it was clear from the facts that the two shopkeepers were not threatened at all.  However, the fact remains that a dangerous weapon was displayed and used in the course of the robbery.

15.  In my judgment, the defendant is of old age and although he had a criminal record, the record is spent and is not a similar record.  In the course of the robbery, no serious violence was used.  I therefore consider that I can adopt somehow a lower starting point from the usual starting point of 5 years to 4½ years.

16.  I will still afford the defendant the full one-third discount on his plea.  In the end, the resulting sentence is 36 months’ imprisonment and this is the sentence that I will pass to the defendant.     

[1] [1981] HKLR 610