HKSAR v. WU PING CHUEN

DCCC 587/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 587 OF 2009

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

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

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

Reasons for Sentence

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

1.   The defendant pleaded guilty to one count of robbery.

2.   On the evening of 14 April 2009 the defendant robbed 2 salesladies of a beauty salon in Tsuen Wan at knifepoint as the 2 sales ladies were leaving the shop after work.

3.   The defendant pointed a 12” knife (a broad blade which measured 7”) at the 2 girls and demanded them to go back into the shop. In the course of pushing the girls back towards the door of the shop the defendant’s knife cut the index finger of one of the 2 victims. When the salesladies told the defendant they did not know the pin code of the door, the defendant demanded them to surrender their own properties.

4.   The defendant tied the 2 victims up with nylon strings to the door of the beauty salon and took away their mobile phones, credit cards, ATM cards and cash. Before leaving the victims, the defendant demanded for the pin codes of their ATM cards and taped their eyes and mouths.

5.   After the defendant left, the victims freed themselves and reported the matter to the police.

6.   A patrolling police constable arrested the defendant outside a nearby bank shortly after receiving the victims’ robbery report. Stolen properties of the victims were found on the defendant. A 12” bloodstained knife, bloodstained nylon string, 2 pairs of black gloves, surgical mask, cap, a roll of adhesive tape and some 95 plastic straps were also found on the defendant. The defendant admitted he committed robbery for his desperate need of cash.

7.   When interviewed in the police station the next day, the defendant further admitted he had attempted to withdraw money with the use of the two ATM cards he got from the salesladies. He failed since the pin codes the victims supplied did not match the cards.

8.   The Court has to keep reminding the defendants in court of what former Chief Justice Sir Denys said in Mo Kwong Sang [1981] HKLR 610 (CA) 2/9/81:-

“….. men were armed with knives, with which they threatened their victims before robbing them and, in most cases, tying them up.

Armed robbery of this nature, which must cause terror to the victims as well as a loss of their possessions, has become increasingly common.

We think that it will be of assistance to District Judges if we indicate the level of sentence for armed robbery with which we would not interfere.

By the word “armed” in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed.

As this court has said on a number of other occasions, little account can be given to the previously clear record of anyone who takes part in an “armed robbery”.

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 5 years.

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 6 years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of 7 years should be considered.

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 multiplicity of offences of a similar kind.”

9.   One can certainly appreciate the fear the 2 sales ladies experienced when being robbed at knifepoint. One of them had her finger cut in the incident. From the medical report the injury did not appear to be of a serious nature. They were tied to the door of the shop. They were told to disclose their bank pin codes whilst being tied up. They mouths and eyes were taped. The defendant intended to gain entry into the shop for his robbery. He has also attempted to further steal from the victims’ accounts by use of their pin codes and the stolen bankcards.

10.   The possession of knife, tapes, gloves, mask and strings are signs of premeditation and intended use of force. Not only was the defendant armed with a weapon of offence, he also armed himself with items for restraint.

11.   Though the defendant did not manage to gain entry into the shop, the salesladies were tied to the door of the shop and one was injured in the course of the robbery. Eyes and mouths of the victims were taped up. The defendant intended to further steal from their accounts with the pin codes and the bankcards. With the aggravating features of this case, I consider a starting point of 6 years to be appropriate.

12.   The defendant is aged 40. He had a clear record before this offence. He was born and educated in Hong Kong. After receiving his secondary education he started working as a salesman. He set up his own leather company in 1989. His leather business ceased after 3 years of operation. He took over the café business of his brother which also closed down after about 3 years. He became a bar tender in cafes and restaurants in 2004. Since 2005 he worked as a container checker, earning about HK$16,000 a month.

13.   The defendant had his first marriage in the 90s and was divorced in early 2000s. He remarried to a shop assistant working in Shenzhen of China in 2005 and had a daughter born to the marriage. The defendant, his wife and his daughter (who is now 3 years of age) lived in the city of Dongguan in Guangdong province.

14.   It was said in his mitigation the defendant engaged in the present offence since he was under financial constraint. He has formerly borrowed from finance companies and he was still repaying his outstanding loans. His family members wished to have his daughter educated in Hong Kong which increased his financial burden.

15.   He said he did not mean to hurt the victim. The knife was only intended to be used to put the victims in fear. He has told the victims he only wished to take HK$10,000 from each of their bank accounts. It was said on his behalf this is an out of character act. His family is now forced into a situation where daughter and mother have to live apart.

16.   The defendant’s 3 years old daughter was brought to Hong Kong in May 2009 (about 2 weeks after the robbery incident) by the wife of the defendant. The girl has been left in Hong Kong on her own after the incarceration of the defendant for this robbery. I have some concern over the welfare of the 3 years old and have called for a welfare report for her before sentence. She is now in foster care and the niece of the defendant is showing active care and concern over the welfare of the 3 years old.

17.   Financial constraint is not considered a good mitigating factor. The strongest mitigating circumstances are the defendant’s plea of guilty indicating his remorse and his full co-operation with the police at the time of his arrest. I accord him 1/3 discount in full and sentenced him to a term of 4 years imprisonment instead of the intended 6 years’ term.