HKSAR v. HO CHI-WAI

DCCC 682/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.682 OF 2013

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of Attempted Robbery, contrary to s.10 of the Theft Ordinance, Cap.210 and s.159G of the Crimes Ordinance, Cap.200.

2. Particulars of the charge are that the defendant on 10^th May 2013 attempted to rob a Tu Yuan Yuan at ground floor, BOC Mongkok Commercial Centre on Nathan Road.

Summary of Facts

3. Ms. TU was in the process of depositing $3,000 cash at an ATM at the particularized address above when the defendant, wearing a cap and a surgical mask, grabbed her neck and pointed an 8 inch long pair of scissors at her and demanded her money.

4. Ms. TU struggled and grabbed the defendant’s right hand and tried to push him away. The defendant swore and punched her head and face. During the struggle which lasted about 30 seconds, the defendant’s cap and mask fell to the ground. Ms. TU had never seen the defendant before.

5. PC7699 and PC10251 happened to be on anti-crime patrol in the vicinity and they immediately entered the bank and subdued the defendant.

6. The defendant was arrested but remained silent under caution. A pair of working gloves and another surgical mask were found inside the bag that the defendant had with him.

7. Ms. TU refused medical treatment but the Police officers who came to her aid confirmed redness and swelling on her face and abrasion on her right forearm.

8. Closed circuit television footage captured the defendant holding Ms. TU’s hair, banging her head on the ATM at the material time.

Previous convictions

9. The defendant has 20 previous convictions from 6 court appearances. 11 convictions were for robbery related offences.

Mitigation

10. The defendant is 42, educated up to Form 2. He was employed as a wall painting worker at the time of arrest earing $350 a day.

11. Mr. Chan for the defendant very helpfully prepared a ‘Statement of Mitigation’ and I will not repeat its contents. In gist, Mr. Chan want the court to take into consideration that it was a spur of the moment offence for the defendant and that the defendant had for the past 14 years tried very hard to keep on the right side of the law and only committed the present offence out of desperation.

Sentence tariff

12. In the case of Mo Kwong-sang v R [1981] HKLR 610, CACC 359/1981, the Court of Appeal set down guidelines for robbery cases involving use of weapons such as knives:

“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.

16. These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

17. Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

Sentence

13. In our present case, the victim is 31 years old, the attempted robbery took place at 4 am inside a commercial premises, the defendant had used physical violence on the victim by grabbing her neck, punching her head and face and pulling her hair and banging her head against the Automated Teller Machine. The defendant also used an 8 inch long pair of scissors to threaten the victim. It was submitted that the scissors were tools of work. I don’t think that is a mitigating factor. The moment the defendant chose to use them to threaten PW1 while he was robbing her, it became a weapon he used to commit the offence and as such will be dealt with accordingly.

14. The defendant acted alone, the victim sustained only very minor injuries requiring no medical treatment. PW1 suffered no loss.

15. Although the defendant has 20 previous convictions with 11 of them being for robbery or conspiracy to rob, they are convictions dating back to the 1990s, with the latest robbery convictions being in February 1992. Furthermore, his last previous conviction was back in 1999 for theft when he was given a 6 months’ imprisonment sentence. He had since been able to keep out of trouble for the past 14 years.

16. Having said that, this is the defendant’s twenty-first criminal conviction and his twelfth relating to robbery. I find that the most I can do in relation to this 14 years’ good record is to not take the previous convictions as an aggravating factor, and no more. I refuse to give him a discount in sentence just for keeping out of trouble for 14 years.

17. This court is not entirely without sympathy for the defendant. It would appear that he did try very hard to be self-reliant and to look after his grandmother over the past 14 years. It could not have been easy given his criminal record. I have no doubt that the defendant cares about his grandmother and would like to be by her side, but the defendant should have thought about this before he decided to rob the victim.

18. In relation to Mr. Chan’s submission that it was a spur of the moment offence, I find that even if that is true, it does not amount to a mitigating factor but to the lack of an aggravating factor, namely, that there was no pre-meditation or meticulous planning of the robbery. The same can be said of the fact that he had committed the offence alone, it is merely the lack of an aggravating factor.

19. The victim’s ordeal must also not be overlooked. A woman walking alone late at night suddenly being attacked by a man wearing a mask and cap and holding a pair of scissors, punching her head, pulling her hair, banging her head against the ATM and ordering her to hand over her money. It must have been a very traumatic experience. The defendant was the sole cause of that experience and he must bear the full consequences.

20. Bearing in mind the use of violence and the scissors while applying the Mo Kwong-sang guidelines, I find that an appropriate starting point in the present case is that of 6 years’ imprisonment. Since the defendant had pleaded guilty to the charge, his sentence is discounted to that of 4 years’ imprisonment.