HKSAR v. LO MAN KIT

DCCC404/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.404 OF 2010

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

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

Reasons for Sentence

1.  The defendant faces 1 charge of robbery, contrary to s.10 of the Theft Ordinance, Cap.210. It is alleged that the defendant on 17^th March 2010, inside McDonald’s Restaurant, 1^st Floor, No.1 Lai Chi Kok Road, Mongkok, robbed Kan Tsz Kwan (“PW1”) of cash $60 Hong Kong currency. The defendant pleaded guilty, admitted to the summary of facts and was duly convicted.

Facts

2.  PW1 and PW2 were staff of the McDonald’s Restaurant stated in the charge. At around 3:47am on 17^th March, the defendant entered the restaurant and ordered some food at the cashier counter staffed by PW1. While PW1 opened the till to get the change, the defendant suddenly jumped over the counter and grabbed a metal scoop nearby and held it against the neck of PW1, demanding her to step away from the cashier counter, declaring robbery on PW1.

3.  PW1 stepped away as told and the defendant took some banknotes from the till. At this juncture, PW2 who was working inside the manager’s office came out and saw the defendant pointing the metal scoop at PW1. PW2 together with other colleagues subdued the defendant. During the struggle, PW2 saw the defendant dropping three HK$20 notes from his hand.

4.  Police was called and the defendant was arrested and cautioned at the restaurant. Under caution at scene, the defendant said that he was unemployed, had no money and so he robbed. In a subsequent video recorded interview, the defendant further admitted that he had grabbed the metal scoop from behind the cashier counter and pointed it at PW1 to commit robbery and that he had taken three $20 notes from the till.

5.  The robbery was captured on closed circuit television installed inside the restaurant. No person suffered any injury and the restaurant did not suffer any loss.

Previous convictions

6.  The defendant has 1 criminal conviction for possession of dangerous drugs in 2002.

Mitigation

7.  The defendant is 31, educated up to F.5 level. He was unemployed at the time of arrest. He lives with his mother and elder brother in Hong Kong.

8.  His last conviction was some 7 odd years ago when he was fined for simple possession of dangerous drugs and the conviction is now regarded as spent.

9.  At the time of the offence, the defendant was unemployed and he had had an argument with his elder brother some days before the offence. He was asked by his brother to leave home. The defendant had nowhere to go for a few days. He was very unhappy and felt hopeless. Although his mother would come out to speak with him, she asked him to wait a while more until his elder brother’s anger had subsided, then he could go home.

10.  It was his unhappiness and feeling of hopelessness that caused the defendant to commit the present offence. The defendant committed the offence by himself. After he had jumped over the counter into the kitchen area he just randomly picked up whatever he could find, which turned out to be the scoop. The prosecution will accept that he pointed the round end of the scoop at the victim.

11.  The defence submitted that the scoop was not a dangerous weapon, and no injury was suffered by the victim. The defendant acted out of stupidity and impulse and the robbery was not premeditated. The money that he took from the cashier was only $60. But for his unemployment and the quarrel with his brother, the incident would not have happened. The defendant is very remorseful and his mother is here in court to support him.

Sentence authorities

12.  In the case of Mo Kwong-sang v R [1981] HKLR 610 “…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.  In our present case, although the defendant did use a metal scoop to commit the robbery, the scoop can hardly be described as a dangerous weapon and I do not think a starting point of 5 years would be appropriate.

14.  In arriving at the sentence, I have taken into consideration the fact that the defendant committed the offence alone and that the robbery was committed in a commercial premises and not a domestic premises. I have also taken into consideration the reason why the defendant committed the offence which is that you had an argument with your elder brother and you were kicked out of your home.

15.  Taking those circumstances as a whole, I find that a starting point of 3 years’ imprisonment is appropriate. Granting the defendant the full one third discount for his guilty plea, I sentence him to 24 months’ imprisonment.