HKSAR v. VU VAN HAI

DCCC999/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 999 OF 2012

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Reasons for Sentence

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1.  The defendant in this case, Mr. Vu Van-hai, pleads guilty before me to one charge of robbery, charge 1, and one of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, charge 2.

2.  Both offences took place on 5^th September 2012.  The robbery charge concerned the use of a knife.  In the course of the robbery the defendant displayed and pointed a knife to the victim.  The facts as admitted by the defendant revealed that at around 12.20 pm on 5^th September 2012, the victim, Mr. Wong, was about to cross a road outside NWS Kwai Chung Logistics Centre.  The defendant appeared from the opposite side of the pavement. When the defendant reached Mr. Wong, he suddenly took out a knife and pointed it at Mr. Wong without a word.  Mr. Wong realised that the defendant intended to rob him so he handed over his wallet to the defendant.  As there was no money in the wallet, the defendant returned the same to Mr. Wong.  The defendant then pointed the knife close to Mr. Wong’s neck and used his right hand to search Mr. Wong’s waist bag.  The defendant snatched away Mr. Wong’s mobile phone and hands-free earphones, he then wandered in the vicinity.  Mr Wong reported the case to the police.

3.  When the police arrived, the defendant was still wandering in the vicinity.  Mr. Wong pointed the defendant out to the police.  The police then intercepted the defendant who then dropped the knife onto the ground.  Mr. Wong’s mobile phone and hands-free earphones were found inside the defendant’s right trousers pocket upon search.  Mr. Wong identified his mobile phone and hands-free earphones.  He also identified the knife as the knife used in the course of the robbery.  The defendant was arrested by the police.  The defendant made admissions under caution.  He admitted that he left Vietnam and entered China illegally by boat on 3^rd September 2012.  He did not have any identification document with him.  He entered Hong Kong illegally by hiding underneath a truck in Shenzhen.  He arrived at Hong Kong on the morning of 5^th September 2012.  He admitted pointing the knife at Mr. Wong and robbing Mr Wong of the stolen properties.

4.  The defendant has a clear record in Hong Kong. 

5.  Mr. Cheng has kindly prepared a written mitigation.  The defendant is now 34 years of age, he completed Form 2 education in Vietnam.  Mr. Cheng told me the defendant’s wife had left the defendant in 2009.  The defendant has a 9 years old daughter now being taken care of by the defendant’s mother.  The defendant is the sole breadwinner of the family.  He worked as a hawker selling seafood in Vietnam and he made a modest income of $400 per month.  Mr. Cheng told me the defendant was heavily in debt in Vietnam.  Because of his indebtedness he was assaulted in Vietnam.  In fear that his creditors might kill him, the defendant escaped from the hospital and he sneaked into Hong Kong through China.  He wanted to avoid these people and he also tried to make some money. 

6.  Mr. Cheng draws my attention to the case Mo Kwong Sang.  Mo is of course the guideline case for armed robbery without use of firearms.  The Court of Appeal in Mo stated: -

“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. As this court has said on a number of other occasions, little account can be given to the previously clear record of anyone who takes part in an armed robbery. 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 5 years.”

7.  In the present case, the defendant displayed and pointed a knife to the victim.  Applying the tariffs of Mo to the facts of the present case, I take a starting point of 5 years’ imprisonment for charge 1.  I agree with Mr. Cheng’s submissions that there are no aggravating features in the present case which call for an upward adjustment. 

8.  Mr. Cheng also drew my attention to a few District Court sentencing cases but the facts of these cases are clearly distinguishable from the present one.  HKSAR v Chan Sang Yiu, DCCC276/2011 concerned a defendant who was only 15 years old.  HKSAR v Frederick David Penney, DCCC 294/2011, involved the use of a weapon which was much less lethal than the knife used by the defendant in the present case.  In HKSAR v Nguyen Duc Phuong (D1) & Tang Van-toan (D2) DCCC 1073/2009, partly consecutive terms were imposed for the immigration offences and the robbery charge.  Mr. Cheng cited Nguyen’s case in support for his contention that in the present case I should also impose partly consecutive terms for the robbery charge and the unlawful remaining charge.  In Nguyen’s case, I stated in paragraph 31 of the Reasons for Sentence: -

“The authorities Tong Fuk Sing CA216 of 1999 and Chan Po CA290 of 1999 are the authorities for the proposition that the immigration offences should be made consecutive with the sentence for other offences, for example, burglary and robbery. But the court in considering the overall sentence should bear in the mind the totality principle.”

9.  In Nguyen’s case, a higher starting point of 5 years and 9 months was taken because of the presence of the aggravating factors.  The 2nd defendant in Nguyen’s case was a repeated offender for immigration offences.  Apart from the robbery charge, D2 also pleaded guilty to one charge of illegal remaining and one of breach of deportation order.  It was against this background that this court considered the totality principle and imposed partly consecutive terms for the robbery charge and immigration offences in Nguyen’s case.

10.  For charge 2, remaining in Hong Kong without the authority of the Director of Immigration after landed unlawfully in Hong Kong, applying the tariff as set down by the Court of Appeal in So Man King, 15 months’ imprisonment is the appropriate sentence on a plea. 

11.  The Court of Appeal in HKSAR v Tong Fuk Sing 1999 3 HKLRD 710, considered whether the sentence for unlawful remaining should be made wholly consecutive for the sentence for burglary.  The Court of Appeal stated: -

“Furthermore, unless, for example, there exists some compelling circumstances such as strong humanitarian reasons, this sentence should normally be imposed consecutively to the sentence imposed for the offence which accompanies it.”

The Court of Appeal went on to state: -

“This court has repeatedly said that it is proper that such sentence be made consecutive. We have observed on a number of occasions in the past that householders, particularly those who reside in the New Territories are entitled to retire in the evening with a feeling that their house and their property therein is safe from the sort of depredation that persons such as the applicant are committing. It would be wrong for the courts to exercise leniency in relation to offences of this type. It would be a failure to give what protection the courts can give to the residents of Hong Kong. The sentence in our view were not too severe and the application is refused.”

12.  For charge 1, as said, I take 5 years as the starting point.  The defendant is entitled to one-third reduction for his guilty plea and his clear record.  For charge 1, I sentence the defendant to 40 months’ imprisonment.

13.  For charge 2, I sentence the defendant to 15 months’ imprisonment. 

14.  I take into consideration the totality principle and bearing what the Court of Appeal has said in Tong Fuk Sing, in the present case there is no compelling circumstances or strong humanitarian reasons.  In my judgment, the sentence for charge 2 should run consecutively to the sentence for charge 1.  The defendant has to serve a total term of 55 months.