HKSAR v. YU WAI YUEN

DCCC 880/2024

[2025] HKDC 1088

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 880 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of attempted robbery

Summary of facts

2.  At about 8:52 pm on 8 April 2024, PW1 (62)  was on duty in a security hut which was located at the entrance of a construction site.

3.  The Defendant left after a brief conversations with PW1, but returned very soon afterwards with a metal rod in his hand and pointed at PW1 through the glass window of the door, demanded PW1 to open the door and hand over $50 to him.

4.  PW1 was scared, she pressed against the door to stop the Defendant from opening it and claimed that she has no money.

5.  The Defendant demanded PW1 to give him her phone, but was also rejected by PW1.

6.  The Defendant fled form the security hut when PW1 screamed for help.

7.  At the same time, it happened that police was patrolling nearby and heard the screaming, the police approached the security hut and saw the Defendant was holding the metal rod, but discarded it nearby and fled towards the exit of the site.

8.  The Defendant was soon arrested.  He said under caution that he picked up the metal rod from the site and pointed it at PW1 to demand money and a phone from PW1 as he was in dire straits as he had gambling debts.  He asked for the phone as he worried PW1 might call the police.

Criminal record

9.  Between 2011 and 2014, there were 5 convictions in relation to offenses of assault and one offence of criminal intimidation.

Background

10.  The Defendant is 69 years old, he worked as a construction site worker making $15,000 per month.  He is married with 2 adult children.  The Defendant became unemployed 4 to 5 months before the commission of the present offense and relied on the old-age allowance $4,025 from the Government.

11.  The Defendant lost all his money in gambling that night.  When he walked past the construction site, he intended to ask for $50 from PW1 to buy food as he was hungry.

12.  The Defendant knows that he is wrong and asks for a lenient sentence.

Sentence

13.  The maximum sentence is one of life imprisonment

14.  In the case of Mo Kwong Sang[1], the Court of Appeal suggested that 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.

15.  The defence in mitigation referred me to HKSAR v Au Chi Hang[2] in which the court explained what is a “dangerous weapons”:

“It should mean objects which could be compared to a knife in terms of capability of inflicting immediate death or serious injuries in the course of robbery, so that faced with such an object, the victim could only choose between succumbing to the robber or sustaining serious injuries. The emphasis was on the degree of fear to which the object could make the victim subject. Factors affecting the degree of fear included the nature (including size and weight)  of the object and the circumstances of the offense.”

16.  I have the opportunity to exam the metal rod, it was about 1 meter in length , weighted about 500 g, one end was covered by rubber while the other end was an opened end without any cover.  There was no evidence as to which end that the defendant held the metal rod at the material time.  Nonetheless, having examined the metal rod, I conclude that it cannot be regarded as a “dangerous weapon”.

17.  In the present case, the metal rod was casually picked up in the construction site rather than prepared and brought along by the Defendant for the purpose of robbery.

18.  The Defendant used the metal rod to point at the victim, fortunately, she did not suffer any injury.  However, it was committed at the time when she was alone in the security hut.  When she was faced with the Defendant, and with the metal rod being pointed at her, she must have subjected to considerable fear.

19.  I am told that there was another security guard as they worked in pair, but he was in another area inside the construction site.  That night, PW1 worked on a night shift from 8 pm to 7 am, the site entrance was about 100m from the main road.  As said before, facing alone in those circumstances, she must be very scared.

20.  Taking into account of that fact that PW1 did not suffer any injury or any property lost, I take 3 years 9 months as the starting point, reduce to 2 years 6 months after 1/3 discount.