COURT: The defendant pleaded guilty to three charges, namely one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210, and two counts of obtaining property by deception, contrary to section 17 of the same ordinance.
On 2 September 2021, at about 3.18 am, a taxi driver was on night shift and his taxi was near Tin Sum Police Station in Tai Wai. He saw the defendant hail for his taxi at the roadside and so he let her board his taxi.
The defendant asked the driver to drive her to the Kowloon Hotel in Tsim Sha Tsui. The driver did so and upon arrival at the hotel, the defendant got out of the taxi and had a short conversation with an unknown man. After that, the defendant boarded the taxi again.
The defendant then asked the driver to drive her back to Hin Keng Estate in the Tin Sum area, Tai Wai. Upon their arrival at 4.20 am, the defendant told the driver that she
would need to retrieve money for her fare and left her mobile phone and a pink recycle bag to the driver as guarantee.
About 25 minutes later, the defendant returned and asked the driver to drive her to Kowloon Hotel in Tsim Sha Tsui again. Upon arrival, the defendant claimed she does not have a mobile phone and borrowed the driver’s mobile phone to make a call. Afterwards, the defendant asked the driver to drive her back to Hin Keng Estate in Tin Sum again.
It was at about 5.20 am when they arrived back at Hin Tak House, Hin Keng Estate. The defendant suddenly took out a knife and held it at the driver’s neck and declared robbery. The defendant asked the driver to surrender his properties, and the driver complied and handed about $500 cash to the defendant. The defendant took the cash and the driver’s mobile phone, and fled from the taxi towards Hin Tak House. The taxi driver then reported the matter.
Later in the same day, the driver bought a new mobile phone for use and re-installed the Alipay application. The driver noticed that HK$1,952 of his HK$2,000 consumption voucher credited in his Alipay account had been deducted. The Alipay application kept record of the related transactions, and they were:
(1) At a Circle K convenience store, between 9.08 am to 9.28 am on the same day, three purchases for buying food and drink in the total amount of $211.50 were made; and
(2) At a 7-11 convenience store, at about 11.57 am on the same day, four transactions, buying three cartons of cigarettes and a plastic bag, totalling $1,740.50 were made.
The defendant was later arrested and admitted under caution that she robbed the taxi driver because she was pregnant and in need of money. In the subsequent video-recorded interviews, the defendant further admitted that she did use the taxi driver’s Alipay account, she knew the password for the mobile phone when the taxi driver lent her the phone and unlocked it for her. The defendant then threw away the driver’s mobile phone in a rubbish bin near one of the convenience stores.
The Defendant’s Background and Submissions in Mitigation
The defendant is currently 33 years old. She came from a decent family background - both her parents have careers in the education industry and the defendant herself had been a
full-time student in the Bachelor of Nursing with honours in general healthcare programme at the Open University of Hong Kong, although she did not complete that degree. She later on obtained a bachelor degree in social work with honours from the Gratia College. She also obtained insurance intermediaries qualifications.
According to the letter from the defendant’s mother, the defendant’s life took an unfortunate turn when she faced a severe setback in her personal relationship. This, coupled with the influence of detrimental acquaintances, led her down a path of drug addiction. The defendant has two young sons from two previous relationships. The defendant’s sons are currently being looked after by the defendant’s mother.
The defendant has had a history of adjustment disorder since 2015, and was diagnosed with Graves’ disease in 2022, amongst other illnesses. She also has two convictions for theft for which she was sentenced to drug addiction treatment centre in July 2020.
From the letters submitted by both the defendant and her mother, the defendant appears to be genuinely remorseful for her actions. The defendant states that she has understood her mistakes, she is committed to staying away from drugs and becoming a good mother for her young sons.
During her time in remand, the defendant has also contributed to Father Wotherspoon’s anti-drug campaign by writing a letter that has been of use to Father Wotherspoon’s campaign. She has also attempted to provide assistance to the police in respect of alleged drug activities but the information was not sufficiently specific to be of practical use to the police.
The Appropriate Sentences
I turn next to the consideration of the appropriate sentences.
In respect of the robbery count, the leading case is R v Mo Kwong Sang [1981] HKLR 610, which set down guidelines and tariffs for robbery with lethal weapons such as knives. In an ordinary case of armed robbery, where an accused carried a knife or other dangerous weapons and was displayed to the victim, the starting point should normally be 5 years. The starting point will be increased if there were other aggravating factors.
In the case of a taxi robbery, in HKSAR v Hussain Shakil, CACC 387/2011, the Court of Appeal at paragraph 18 of the judgment quoted the following passage from the case of Tran Van Anh [1993] HKCLR 122:
“Taxi drivers are particularly vulnerable to robbery, especially those who ply for hire late at night or in the early hours of the morning or who pick up or drop passengers in quiet locations. Henceforwards, sentences of 7 years’ imprisonment after a contested trial would be justified for offences similar to that in the present case.”
In the present case before this court, the defendant used a knife to commit robbery and held it at the driver’s neck from behind. Having regard to the fact that no actual injuries had been caused to the driver, and that the defendant committed the offence alone, in my judgment a starting point of 6 years’ imprisonment is warranted.
The defendant’s guilty plea would reduce the starting point to 4 years’ imprisonment on Count 1.
In respect of Counts 2 and 3, both relate to the fraudulent use of the taxi driver’s Alipay app installed in the driver’s mobile phone to make two purchases at two different convenience stores within hours after the robbery in the amounts of $211.50 and $1,740.50 respectively.
The funds in the driver’s Alipay account originated from the $2,000 consumption voucher payment which had been credited into that account. The prosecution confirmed that the Alipay account had not been linked to any credit card or bank account, which meant that any potential loss associated with the fraudulent use of that Alipay account was limited to $2,000 only.
Mr Kwong, solicitor advocate appearing for the defendant, referred me to the case of HKSAR v Li Chi Yat [2019] HKCA 458, which involved the theft of a single credit card by that appellant who successfully used it to purchase a mobile phone of $7,917, plus two further but failed attempts to purchase other items. The credit limit on that card, and therefore the potential for further loss, was $20,000. The Court of Appeal categorised the case as “a case of credit card fraud at the low end of scale of criminality” and took the view that the appropriate starting point on each of the deception charges should be 2 years’ imprisonment - see paragraphs 22 to 23 of that judgment.
The present case before this court involved the fraudulent use of an Alipay account and therefore is not strictly a credit card fraud case, although it can be said that similar consideration as to the need to protect the integrity of such payment services, which are now becoming a part of daily life, would apply. The amount actually obtained as a result of the two fraudulent uses of the Alipay account was less than the case of Li Chi Yat, and the potential for loss was also restricted to $2,000 being the balance of the consumption voucher credit.
In those circumstances, in my judgment, a starting point of 18 months’ imprisonment for each of Counts 2 and 3 would be appropriate. The defendant’s guilty pleas would reduce that starting point to 12 months’ imprisonment on each of Counts 2 and 3.
Given that Counts 2 and 3 relate to the same phone and same Alipay account, and both offences were committed in relatively close proximity in time, I will order that the sentences on Counts 2 and 3 be fully concurrent with each other.
The fraudulent use of the Alipay account is clearly separate and distinct from the robbery count and therefore those sentences should at least be partially consecutive, having regard to the totality principle.
Taking into account the relationship between the two sets of offences and the relative proximity in time, I am of the view that 6 months of the concurrent sentences on Counts 2 and 3 should run consecutively to the sentence on Count 1.
In respect of the defendant’s contributions to Father John Wotherspoon’s anti-drug campaign, in HKSAR v Fundi Furaha Giles [2019] HKCA 154, the Court of Appeal held that the sentencing court has a discretion to offer a discount for significant contributions to Father Wotherspoon’s campaign of no more than 3 months, but the Court of Appeal also considered that simply writing a few letters for Father Wotherspoon’s campaign would attract nothing more than a very token discount (see paragraph 22 to 23 of that judgment). As such, in the current case, I consider that a 1-month discount is appropriate. I will achieve this result by applying the discount to the sentence on Count 1.
In respect of the defendant’s attempt to assist the police by providing information on other drug related authorities, given that the information provided was of no practical value, the authorities do not allow for any extra discount to the defendant’s sentence - see HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, paragraphs 77 to 85 and 191, and HKSAR v Yeung Hoi Ting [2019] 5 HKC 511 at paragraph 95.
Conclusion
In conclusion, the defendant is sentenced to 3 years and 11 months’ imprisonment on Count 1, 12 months’ imprisonment on Count 2 and 12 months’ imprisonment on Count 3.
The sentences on Counts 2 and 3 will run concurrently with each other, 6 months of the concurrent sentences on Counts 2 and 3 will run consecutively to the sentence of Count 1, thus resulting in a total sentence of 4 years and 5 months’ imprisonment.
I sentence you to a total term of 4 years and 5 months’ imprisonment.