HKSAR v. NGUYEN DUC PHUONG AND ANOTHER

 DCCC1073/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1073 OF 2009

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Reasons for Sentence

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1.  There are two defendants before me, D1, Nguyen Duc Phuong, and D2, Tang Van-toan. D1 and D2 both plead guilty to one count of robbery, the first charge. D1 also pleads guilty to the 2nd charge, i.e. remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. D2 also pleads guilty to one charge of illegal remaining, Charge 3, and one of breach of deportation order, Charge 4. All four offences took place on 7 August 2009.

2.  D1 and D2 admit the following facts.

Robbery

3.  PW1 Madam Lu, a mainland visitor, was walking along Sai Ching Street, Yuen Long, at around 0420 hours on 7 August 2009. She saw D1 and D2 approaching her in the opposite direction. And both defendants walked past PW1 outside Ground Floor, Wilson Carpark, Full Shing Building, No. 9 Sai Ching Street. The two defendants stopped and surrounded PW1. One of the defendants pointed a fruit knife of 10 inches in length at PW1’s right shoulder and threatened PW1 in Punti not to make a sound and to surrender her property.

4.  PW1 offered her rucksack to the defendants but they refused to take it and dumped it on the ground. Thereafter, the defendant snatched PW1’s handbag and her necklace. PW1 resisted and struggled but to no avail. Before D1 and D2 fled, one of them hit PW1 on her face with her handbag. PW1 raised hue.

5.  At that time three police officers, PC10039, PC54517 and PC1308, were patrolling in the vicinity. The police officers were alerted by the struggle between PW1 and the two defendants. When the police officers were approaching the group for investigation, PW1 cried, “Robbery.” Thereafter, PW1 was seen being pushed by one of the defendants. D1 and D2 then fled. PC10039 and PC1308 immediately gave chase while PC54517 sought reinforcement on radio.

6.  After a short pursuit, PC10039 subdued D1 in Sai Yu Street. Before D1 was arrested, he dumped a handbag and a fruit knife on the ground. While subduing D1, D2 ran into the rear lane of Sai Yu Street. At that time another police officer, PC58079, was also on patrol in the vicinity. He heard from police radio of the robbery and he joined in the chase. He subdued D2 in the rear lane of Sai Yu Street. Later, PW1 arrived at the scene. She identified the handbag dumped by D1 to be her robbed one and that D1 and D2 were the robbers.

7.  PW1 was robbed of the following properties:

(1) a necklace chained with a pendant valued at HK$2,300;

(2) a handbag containing an umbrella and a wallet containing PW1’s Shenzhen Resident’s Card, cash of HK$1,700 and Renminbi 199 yuan.

8.  The handbag and the contents therein were recovered from the scene. The necklace and the pendant, however, were not recovered.

Admissions

D1’s admissions

9.  Upon arrest, D1 remained silent under caution. In the subsequent video-recorded interview, with Vietnamese interpretation, D1 admitted the following under caution:

(1) He smuggled into Hong Kong from Vietnam by taking a boat.  He came to know D2 during the voyage.

(2) After arriving in Hong Kong, he and D2 took a taxi to the crime scene.  D1 picked up a knife on the street.  Subsequently, they saw the victim (PW1) and decided to rob her.

(3) D2 knew Cantonese.  He declared robbery to the victim in Cantonese.  Whilst D2 was snatching the victim’s necklace and handbag, he threatened the victim with the knife and pointing it at her abdomen.  At this juncture, the police arrived.  They fled.  In their escape, D2 passed to him the victim’s handbag.  Eventually, he was arrested by the police.

D2’s admissions

10.  Upon arrest, D2 remained silent under caution. In the subsequent video-recorded interview, with Vietnamese interpretation, D2 admitted the following under caution:

(1) He smuggled into Hong Kong from Vietnam by taking a boat.  He came to know D1 during the voyage.

(2) After arriving in Hong Kong, he and D1 took a taxi to the crime scene.  Subsequently, they saw the victim (PW1) and decided to rob her.

(3) D2 knew Cantonese.  He asked the victim not to make a sound in Cantonese.  He then snatched the victim’s necklace and handbag.  Meanwhile, D1 took a knife and threatened the victim with a knife.  He did not know how D1 came by the knife.

(4) While robbing the victim, the police arrived.  They fled.  In the escape, he passed the handbag to D1.  Eventually, he was arrested by the police.

(5) It was the second time that he smuggled into Hong Kong.

Immigration offences

11.  Both D1 and D2 are illegal immigrants in Hong Kong. D2 is the subject of a deportation order issued on 18 June 2009. The order prohibited D2 to be in Hong Kong at any time thereafter. On 29 June 2009, D2 was served with a copy of the order and was explained of the contents therein. On 30 June 2009, D2 was repatriated back to Vietnam.

12.  D1 has a clear record. In June 2008, D2 was convicted of an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong and he was also convicted of an offence of possession of an offensive weapon in a public place.

13.  Mr Kan who appears for D1 and D2 tells me in mitigation that D1 is a Vietnamese and he is aged 21. He is a married man and his wife is now in Vietnam. They were unemployed in Vietnam at the time when D1 sneaked into Hong Kong. D1 received education up to secondary level in Vietnam and he came from a poor family.

14.  As for D2, he is aged 23. He received lower secondary education in Vietnam. He is marred with a son in Vietnam. Mr Kan tells me D2’s family depends solely on D2. D2 came from a poor family. He used to work as a carpenter in Vietnam but he was unemployed before he sneaked into Hong Kong this year.

15.  Mr Kan tells me both D1 and D2 sneaked into Hong Kong with a view to look for a job. They committed the robbery charge out of momentary greed. D1 is a man of clear record in Hong Kong. In the case of D2, he was convicted of possession of an offensive weapon in a public place in 2008. Mr Kan submits it is the customs in Vietnam that men would carry weapons for self-defence.

16.  Mr Kan tells me both defendants would like to offer their apology to the victim. Mr Kan points out the fact that the victim suffered no actual injury and she was able to recover most of the stolen properties, save for a pendant which was thrown away by D2 during the flight.

17.  As an indication of their remorse, both defendants plead guilty to the charges. In the case of D1, Mr Kan submits that in the light of the sentencing authority, it seems that 5 years is the appropriate starting point for an armed robbery in which a knife was used. In the case of D2, though he was a party to the robbery, D2 was not aware that D1 would exhibit a knife in the course of committing the robbery. Mr Kan asks me to consider the role of D2 as a party to an unarmed robbery.

18.  For the immigration offences, Mr Kan agrees that the normal starting point is one of 15 months on a plea for the illegal remaining charges. He asks me to take into consideration the totality principles in assessing the total terms. He asks me to pass a partially concurrent term on the defendants and he cites the case HKSAR v Wong Tak Po HCMA914/2002 in support.

19.  In sentencing D1 and D2, I have considered the nature of the charges, the facts as admitted the defendants, the record of D2 and all those matters urged on the defendants’ behalf by Mr Kan. I do not accept the defendants’ claim that it was their intention to look for a job in Hong Kong. The facts as admitted by the defendants show clearly that they committed the robbery on the very day they entered into Hong Kong. I also reject the defendants’ claim that it was a custom for Vietnamese men to carry weapons for self-defence. After all, the defendants were in Hong Kong, not Vietnam when they were caught.

20.  I also reject the claim that the defendants committed the robbery out of momentary greed. The facts show that the defendants approached the victim with D1 carrying a knife. I also reject D2’s claim that he had no idea that D1 would exhibit a knife in the course of committing the robbery. It seems to me D2 was only trying to minimize his culpability in offering this explanation to the police.

21.  Quite apart from the facts that in 2008 D2 was convicted of an offence of possession of an offensive weapon in a public place in Hong Kong, it is obvious to me that before D1 and D2 decided to rob the victim, they must have some discussions as to how they would implement the robbery. And the facts show that after D1 produced the knife and brandished the knife at the knife, D1 and D2 carried on with the robbery. With respect to Mr Li for the prosecution, the concession that he makes is not a realistic one.

22.  In the absence of credible evidence to substantiate the claim made by D2, I cannot accept Mr Kan’s mitigation that D2 was not aware that a knife would be used in the course of the robbery. For the reasons given, I would treat Charge 1 as an armed robbery committed jointly by D1 and D2 for sentencing purpose.

23.  According to the case of Mo Kwong Sang [1981] HKLR 610, for armed robberies, a starting point of 5 years would be appropriate in the absence of aggravating factors. But in the present case, I find the presence of the following aggravating factors. Firstly, PW1 was hit by the defendants. Before the defendants fled, one of them hit PW1 on her face with her handbag. The attack on PW1 was totally unnecessary. Secondly, D1 and D2 committed the robbery jointly. In Mo Kwong Sang the court indicated that the suggested sentence should be increased if there are other aggravating factors and amongst these the presence of more than one person in a group of robbers is considered to be an aggravating factor.

24.  For sentencing purposes, I do not consider the fact that PW1 was a tourist in Hong Kong an aggravating factor. D1 and D2 might not be aware that the victim was a tourist in Hong Kong. Given the aggravating factors that I find to exist in the present case, I think a starting point of 5 years and 9 months is appropriate for both defendants. I find both D1 and D2 equally culpable.

25.  Both defendants plead guilty to the offence at the first available opportunity. Each of them is entitled to the full one-third reduction for the guilty plea. For Charge 1, I sentence D1 and D2 to 46 months’ imprisonment.

26.  For Charge 2, according to the authorities of So Man King, 15 months’ imprisonment is the usual sentence on a plea of guilty. Given that D1 is a man of clear record. I see no reason to depart from the usual sentence of 15 months. On Charge 2, I sentence D1 to 15 months’ imprisonment.

27.  Charge 3, D2 is a repeated offender. In my view, a starting point of 27 months after trial would have been appropriate and I take that as my starting point. D2 is entitled to one-third reduction for his guilty plea. On Charge 3, I sentence D2 to 18 months’ imprisonment.

28.  Charge 4, I take 24 months as the starting point and I would allow D2 one-third reduction for his guilty plea. On Charge 4, I sentence D2 to 16 months’ imprisonment.

29.  I have taken into account the totality principle. The defendants committed the robbery offence during their illegal stay in Hong Kong. The sentences for the robbery charge and the immigration offences should be consecutive subject to the totality principle.

30.  I have considered the case cited by Mr Kan. With respect, I think Mr Kan was citing the case out of context, after all the learned Deputy High Court Judge, as he then was, was considering a sentence of over 20 years for trafficking of dangerous drugs. But I do agree with Mr Kan that a partly concurrent sentence is appropriate.

31.  The authorities Tong Fuk Sing CA216/1999 and Chan Po CA290/1999 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 mind the totality principle.

32.  In the case of D1, in my judgment, a total sentence of 56 months should be sufficient to reflect the overall culpability of D1. In the case of D1, I order 10 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1, making a total of 56 months’ imprisonment; 56.

33.  In the case of D2, just over 5 weeks after D2 was deported and repatriated back to Vietnam, he sneaked back to Hong Kong and committed Charge 1, Charge 3 and Charge 4. In my judgment, a total sentence of 68 months is warranted. I order 12 months of the sentence for Charge 3 to run consecutively to the sentence for Charge 1 and 10 months of the sentence for Charge 4 to run consecutively to the sentence for Charge 1 and Charge 3. The total sentence is one of 68 months’ imprisonment.