COURT: The defendant had pleaded guilty in the Magistrates’ Court to one count of robbery and four counts of burglary and had been committed to this court for sentence.
The facts which has been admitted is that in relation to Charge 1, the robbery count, at about 12.20 am, on 17 June last year, the victim was walking home after work when she was accosted by the defendant holding a 20-centimetre long knife. The victim, out of fear, lost her balance and fell onto the ground. The defendant pointed his knife at the victim and demanded money. She initially gave him $140. He demanded more and she gave him another $500.
During this time of the robbery, according to the facts, the defendant had admitted that after the victim fell down she had kicked him, and he had accidentally cut the victim’s finger. The victim’s finger was indeed cut, and she also suffered an abrasion on her right elbow probably from her falling down and tenderness over her right shoulder region. An identification parade was held whereupon she identified the defendant.
Now, in relation to Charges 2 to 5, they all occurred inside the Lei Muk Shue Market in Tsuen Wan. The market is normally locked between 10 pm until 7 am but the security guard would open the door for delivery workers during that time.
In relation to Charge 2, a vegetable stall owner discovered that cash of $600 was missing from a locker in the store. The locker key was also missing, and CCTV captured the defendant entering the market at around 6 am and was seen holding the stolen properties when he left.
In relation to Charge 3, at about 8 am on 12 June 2019, a fruit stall owner in the market discovered that cash of $10,000 placed in a locked drawer was missing. The drawer had been prised open. Again, CCTV captured the defendant entering Lei Muk Shue Market and went to the stall at around 4.15 am, and he was seen prising open the locked drawer with a knife and took the cash from the drawer and left.
In Charge 4, at about 7 am on 13 June, the owner of a fruit stall discovered that cash of $800 was missing. The cash was placed in a bucket under a rack. Again, CCTV captured the defendant entering Lei Muk Shue Market and went to the stall at around 4.10 am to take the stolen property away.
Finally, Charge 5, at about 4 am on 16 June 2019, a security guard discovered that a rear door of a Prince Café had been prised open and it was also discovered that a cashier drawer in the café had been prised open, but nothing was missing. However, further checking revealed that in the store opposite the Prince Café cash of $400 was missing and the drawer had been prised open and a CCTV camera captured the defendant entering and leaving Lei Muk Shue Market at the material time with a crowbar.
On 17 June 2019, the defendant was spotted in Lei Muk Shue Estate and he was intercepted, and under inquiry the defendant stated that he was in need of money and so he committed a few offences. He was cautioned for Charge 5 and the defendant admitted he had used a crowbar to prise open the door and had stolen money as he was in need of money.
Then upon further police questioning the defendant revealed that he had robbed the lady, which is the subject matter of Charge 1. He also revealed in his video-recorded interview under caution the four burglary charges.
Now, the defendant is age 42 and has a really appalling record. He has had a total of some 46 charges, 33 of which are related to dishonesty, crimes of dishonesty, and yesterday he was convicted and sentenced for burglary in the District Court to 20 months and 10 days and this offence was committed in, I am told, 2018 and which was before these present offences before me.
Mr Lee in mitigation on the defendant’s behalf has really prepared a very comprehensive submission in relation to mitigation. He has covered every point and has submitted that the court should consider making these sentences in these offences either partly concurrent or partly consecutive to the sentence in his District Court case.
Mr Lee also very kindly has set out the tariff for robbery and which is, of course, as we all know, R v Mo Kwong Sang, which is a seminal case on robbery in 1981 HKLR 610, that for an ordinary case of armed robbery where it is a knife or something similar was displayed to a victim, the sentence starting point should normally be 5 years. If any physical violence is done on the victim, a sentence of 7 years would be considered.
Mr Lee properly submitted that the wound that the victim suffered was not, according to the evidence, intentionally made. It was an accidental wound because the victim had fallen down on the ground and the defendant in his confession had said that the victim kicked him and in the flurry of the moment the knife accidentally cut the victim. So Mr Lee submitted that I should not increase the sentence from 5 years because he had no intention of using the knife to injure the victim.
As for the burglary charges, Mr Lee submitted that I should consider that this was one offence which was committed all at the same place, although different victims were involved, and that the modus operandi was not sophisticated and so therefore this court should consider it as a single course of criminality when applying the totality principle.
Of course, what is in the defendant’s favour is the fact that he had pleaded guilty at the earliest opportunity. Also in his favour, as Mr Lee pointed out, is the fact that he confessed to the burglary and the robbery and that, therefore, he should be deserving of some consideration when this court is assessing sentence and so I have decided to sentence in the following way.
Of course, the aggravating factor in this case is the fact that the defendant is recidivist. He is a persistent offender and, therefore, I am entitled to adopt a higher starting point than I would normally do because of that. However, I do consider that that is offset by the fact, as Mr Lee pointed out, that he did make a full confession to the police and that he was really in the burglary cases what one would call an opportunistic burglar. So I will not increase the starting point sentence for his recidivism.
Now, in relation to the robbery count, Count 1, the amount taken was $640. It was done in the early hours of the morning on a victim who was on her way home after work. The defendant was carrying a knife and she fell down when she saw the knife and in the heat of the moment the victim was cut on her fingers. So the victim did suffer some injury and whether the defendant when he was carrying the knife initially intended or not to cause injury with the knife, however, it did cause injury. So I will increase the 5-year sentence by 1 year to 6 years as a starting point. So giving the defendant the full one-third discount, he is therefore sentenced to 4 years’ imprisonment on the robbery.
Now, as far as the burglary is concerned, Charge 2, the money was taken but no drawers were prised open, so I would give him a starting point of 2½ years and reduce by one-third to 20 months.
Charge 3, $10,000 was missing from the drawer which had been prised open, so I will increase the starting point sentence to 33 months and giving the defendant the one-third off, will sentence the defendant to 22 months.
In relation to Charge 4, again, there were no prising of drawers and $800 was taken. I would give a starting point of 30 months, and one-third off would give him a sentence of 20 months.
Finally, for Charge 5, the drawer was prised open and $400 was taken, so a starting point of 33 months, I reduce to 22 months for the one-third discount.
Now, I do have to consider the totality principle, as Mr Lee submitted, and so I will sentence, therefore, in this way. The 1st count he is sentenced to 4 years’ imprisonment. For the 2nd to 5th counts, it will be concurrent to each other, so a 22-month sentence in totality, but of that 22 months, 18 months will be consecutive to the 4 years in Count 1, so giving a total sentence of 5 years and 6 months.
Now, I have been urged by Mr Lee to make this sentence consecutive partly or concurrent partly to the sentence which he was given in DCCC 486/2020. I do not consider that it is appropriate to do so. So this sentence will be served consecutive to the sentence he is serving in the District Court.