HKSAR v. SHENG JUN

DCCC 18/2020

[2020] HKDC 381

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 18 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant Sheng Jun pleaded guilty before me to one charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap 210. The particulars are that he, on 12 November 2019, at the rear lane, near Sun Cheong Building, Nos 57-59 Ma Tau Kok Road, Ma Tau Kok, Kowloon, in Hong Kong, robbed Chow Kam Cho of one wallet containing one Hong Kong Identity Card, one Senior Citizen Card, one Octopus card and cash of $3,220 Hong Kong currency.

Admitted facts

2.  The facts admitted by Mr Sheng may be summarized as follows.

3.  At about 1 pm on 12 November 2019 Chow Kam Cho aged 71 (PW1) walked into the rear lane of Sun Cheong Building.  There Mr Sheng was standing opposite to him.  Suddenly, Mr Sheng grabbed PW1’s hands and uttered something in Putonghua.  PW1 asked Mr Sheng why the latter grabbed his hands.  Mr Sheng then pushed PW1 such that PW1’s face and chest were pressed against the wall.  Mr Sheng used his left hand to grab hold of PW1’s left hand and grabbed PW1’s neck.  Next, with his right hand, Mr Sheng searched the pockets of PW1’s pants and took PW1’s wallet which contained PW1’s HKID card, senior citizen card, one elderly octopus card and cash of $3,220.

4.  Mr Sheng fled.  PW1 gave chase but fell.  Outside the rear lane, Mr Sheng met a passerby PW2 who looked into the rear lane and saw and heard PW1 say that he had been robbed.  Both PWs followed Mr Sheng to a place where there were more people.  PW2 shouted robbery so Mr Sheng started running.  PW2 and other passers-by gave chase and finally subdued Mr Sheng.  Case was reported. Police arrested Mr Sheng.  A black wallet containing PW1’s HKID card, his senior citizen card and one elderly octopus card was recovered from Mr Sheng’s front trousers’ pocket.  A pile of cash of $3,220 together with other piles of cash were found in Mr Sheng’s right back trousers’ pocket.

5.  Later at the police station and with the assistance of a Putonghua interpreter, Mr Sheng under caution said, inter alia, that:-

(a) He felt his shoes had been stained by PW1’s urine;

(b) He therefore confronted PW1;

(c) He had a mental problem and had no idea why he took away PW1’s wallet; and

(d) Whilst he was running away, he found there was money insider the wallet, so he put it inside his pocket.

Criminal record

6.  Mr Sheng has a clear record in Hong Kong.

Antecedents

7.  The antecedents statement shows that Mr Sheng is aged 47, educated to secondary level in the Mainland, divorced (corrected to “widowed” by the Defence) and had been a delivery courier.

Mitigation

8.  Mr Jasper Kwan of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Sheng.

9.  The following is a summary of the mitigation submissions.

10.  Mr Sheng came to Hong Kong from Beijing as a tourist on the day of the offence.  He worked in Beijing as a delivery worker earning about RMB8,000 a month.  He became a widower in 2013.  He has a daughter aged 26 who is married and living with her own family in Hebei.

11.  Mr Sheng suffered a fall in early 2019 resulting in head injuries.  No operation was required and conservative treatments were applied.  He was prescribed with anti-seizure medicine which, when taken, decreased the occurrences of seizures.  However, they would come back occasionally, in particular when he was under stress and anxiety.

12.  Mr Sheng came to Hong Kong to look for an internet friend Ms Chan with whom Mr Sheng expected to develop an intimate relationship.  Through the internet, Mr Sheng learned from Ms Chan that her ex-husband kept disturbing her; that if she could not keep in contact with Mr Sheng, something bad might happen to her.  Since early November, he had lost contact with Ms Chan.  Mr Sheng became worried and therefore decided to come to Hong Kong to look for her.  He came from Beijing via High Speed Rail and stopped over in Guangzhou for one night.  Then in the early morning of the day of offence, he came armed with a tourist visa.

13.  He went to the Kowloon City Police Station to seek assistance but in vain because all he could provide was her name and phone number and the fact that she lives in Kowloon City.  Then after having lunch, he went to the place of offence to observe the call of nature.

14.  PW1 appeared.  The duo had arguments.  However, because of language barrier, Mr Sheng thought PW1 tried to take advantage of him.  Out of impulse and greed, he took away PW1’s wallet with force.  Mr Sheng did not intend any harm on PW1.  He just used some force for a short period to keep PW1 under control.  PW1 did not suffer any injuries.

15.  Mr Sheng understands he has done something terribly wrong.  He did not come to Hong Kong with intent to commit a crime.  It is submitted that the fact that he committed this offence shortly after he came to Hong Kong was a mere coincidence.

16.  After his arrest, his epilepsy was about to come back, probably because of anxiety and stress, and not having taken anti-seizure medicine for days.  He was confused at the time of the taking of cautioned statement.  Afterwards, he was sent to the hospital and was given anti-seizure medicine.  Mr Sheng confirmed that at the time of the offence, he knew what he was doing.

17.  Mr Kwan referred to paras 3, 5 & 7 of HKSAR v Lam Ka Hung, CACC 294/2003, and submitted that a 4 year starting point should be appropriate for the present case.

18.  Mr Kwan referred to paras 4, 10 & 11 of HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137 (English translation of a Chinese judgment reported at 133) and submitted that the force used by Mr Sheng in the act of robbery should not be considered as “use of violence” because the force used was not great and was for a brief period only with no intention to harm and which caused no injuries to PW1.

Sentence

19.  I have considered the mitigation submissions including the authorities urged on me.

20.  Robbery is a serious offence for which the maximum penalty is life imprisonment.

21.  For an unarmed robbery, the starting point should be lower than the normal sentence for an armed robbery of the kind envisaged in Mo Kwong Sang v Queen [1981] HKLR 610 (see HKSAR v Ting Chiu & Another [2003] 3 HKLRD 378).

22.  Nonetheless, imprisonment term remains the only realistic sentencing option.

23.  Although the circumstances are suspicious, there is insufficient evidence to show that Mr Sheng came to Hong Kong with the purpose of committing a crime.

24.  I take into account that in this case, minimal force was used and that all the stolen property was recovered.  I adjudge that a starting point of 4 years’ imprisonment is appropriate.  In this regard, I have already taken into account the age of PW1.

25.  An early plea of guilty will earn Mr Sheng a 1/3 discount.  None of the other mitigating factors including a previous clear record are of sufficient weight to justify a further discount especially in a case involving such a serious offence as robbery.

(Mr Sheng, please stand)

26.  The sentence for Mr Sheng is 32 months or 2 years and 8 months’ imprisonment.