HKSAR v. CHAN CHIN HO

HCCC 88 & 89/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 88 AND 89 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The single defendant in these two cases is charged with two offences of robbery which each of them is alleged to have committed the offence with the other. I will call defendant in HCCC 88/2015 Chan Chin-ho as “D1”, and the defendant in HCCC 89/2015 Lee Kai-chung as “D2”.

D1 pleaded guilty before me to two counts. D2 pleaded guilty to the two charges before a Magistrate and was committed to the Court of First Instance for sentence. The case relates to two incidents of taxi robbery.

The first incident, Count 1 for D1 and Charge 1 for D2, took place at midnight on 1 July 2014. The two defendants boarded a taxi. D2 sat in the front passenger’s seat and D1 sat behind the driver’s seat. When the taxi stopped at the requested location, D2 pointed a cutter with a blade of six inches long at the neck of the driver and D1 told the driver to take out all of his money. The driver surrendered cash of $1,800 and his mobile phone.

After D1 had been arrested, he said he helped D2 since he had no money to pay the rent. It was D2 who pointed the cutter at the driver’s neck and declared robbery and D2 had given him a share of $200 or $300.

After D2 had been arrested, he admitted having committed the offence with D1 and said it was D1 who held the cutter and he admitted the two of them had shared the money robbed.

The second case, Count 2 for D1 and Charge 2 for D2, took place at the early hours on 3 July 2014. The two defendants boarded a taxi and sat in the rear passenger’s seat. When the taxi arrived at the requested place, D2, who was sitting behind the driver, pointed a hard object at the shoulder of the driver near his neck and declared robbery. At the same time D1 leaned forward to the front compartment and searched. The driver surrendered cash of $600 and a mobile phone.

After D1 had been arrested he admitted he did commit this offence with D2 as they had no money. D2 pointed his bank card at the neck of the driver from behind and declared robbery. He got a share of 100 or 200 dollars.

After D2 had been arrested he said it was D1 who told him he wanted to rob a taxi and it was D1 who pointed his bank card against the driver’s neck. He said it was D1 who initiated the robbery and he refused to join. During the journey, D1 suddenly used his bank card to rob. He was scared and sat on the ground. D1 took all the robbed properties and the two of them went to his home.

D1 is now 18 years of age. He completed form three education and had worked as an air-conditioning mechanics and transportation worker. He lived with his 50-year-old father and his grandparents. In October 2015, he was sent to DATC for an offence of possession of a dangerous drug.

D2 is 25 years of age. He completed form one education and had worked as a transportation worker. He is single but has a one-year-old son with his ex-girlfriend. He also has records in relation to dangerous drug offences. In 2012, he was fined for possession of a dangerous drug, and in 2013 he was sent to DATC for possession of equipment fit and intended for consumption of a dangerous drug.

Counsel for D1, Mr Ng, stressed that D1 is now remorseful and is prepared to turnover a new leaf. Mr Ng also asked the court to take into account the fact that at the time of the offence D1 has not yet reached the age of 18 and was only playing a supportive role.

The court was informed that the mother of D1 left the family when D1 was only 6 months old, and as his father was occupied by work D1 was brought up mainly by his grandmother. Letters from D1 himself, a social worker who has been offering counselling services to D1, the grandmother, father, uncle and aunt of D1 were produced. D1 expressed his remorse and others spoke well of D1 and pleaded leniency for him.

The court was made aware that D1 had seen psychiatrists and psychologists for dyslexia. For this, Mr Ng confirmed that the information was provided for the court to have better understanding of the background of D1 and not to the extent that owing to this matter D1 had been subjected to undue exploitation or influence from others in committing the offence.

Mr Ng had urged the court to consider a Training Centre report on the basis of the relatively young age of the defendant. Having given D1 the appropriate warning, I ordered for a TC report. The report is not a favourable one. As a result of lack of parental care and guidance and lack of self discipline, the defendant went wayward. As D1 is drug-dependent he is not considered to be suitable for detention in a Training Centre. There are no good reasons not to accept the opinion.

Counsel for D2, Mr Chong, stressed the fact that D2 had pleaded guilty at the earliest opportunity and is now remorseful. Mr Chong informed the court that D2 did not have a happy childhood, in particular as his father had once left the family because of an extramarital relationship. His father did return later but the relationship between D2 and his father is not good. D2 had a relationship with a girl and they have a son. The girl however deserted them and as D2 has to work, the infant, now 2 years old, has been looked after by the parents of defendant.

Under the emotional stress and financial pressure, D2 foolishly resorted to drug and became addicted. Owing to the addiction, he was convicted twice for dangerous drug‑related offences. Before D2 committed the offences he quitted his job and had financial difficulties. With a desire to have quick money he committed the offences.

Mr Chong informed the court that D2 has sought to assist the authority by providing three non-prejudicial statements against D1. The prosecution confirmed this and also that the content of his statements provided sufficient evidence to support a case against D1.

Whilst D2 was prepared to testify against D1, it is not necessary as D1, without knowledge of non-prejudicial statements, pleaded guilty.

Letters of the defendant and his father were produced and I have considered them.

The nature of the offence which the two defendants committed is very serious. In Tran Van Anh [1993] 2 HKCLR 122, the Court of Appeal said:

“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 picks up or drop passengers in quiet locations. Henceforward, sentences of 7 years’ imprisonment after a contested trial would be justified for offences similar to that in the present case.”

In that case, the robbery was committed by three men. The taxi driver had had his hair seized and a sharp weapon was held to his throat. The approach in Tran Van Anh was adopted by the Court of Appeal in Lam Kai Shun CACC461/1988, later in Secretary for Justice v Tso Sze Kin CAAR 1/2003, and more recently in HKSAR v Hussin Shakil CACC 387/2011.

I have also considered the following cases which were submitted by Mr Ng together with Secretary for Justice v Tso Sze Kin: The Queen v Chung Man Kit; AG v Yau Wing Hong; and The Queen v Wong Pit Shing.

In the present two cases, two persons were involved. In the first case, a cutter was used to point at the neck of the driver. It is not difficult to appreciate the fear the driver suffered as a result. Bearing in mind the driver did not suffer physical injury, I am of the view that only a starting point of 7 years is sufficient to reflect a case like this.

In the second case, no real weapon was used but still the driver was subjected to fear. In this regard, I bear in mind counsel’s submission that whilst the tariff in Mo Kwong Sang [1981] HKLR 610 is applicable to the first case, it is not for the second case. Notwithstanding this, I note that this was the second robbery committed within three days.

Having regard to the observation in Hussin Shakil on this matter, I am of the view that a starting point of 6½ years is called for.

In all the circumstances, I adopt the respective starting point for the two offences as I have just mentioned. I do not consider that there was such a material difference in the culpability of the two defendants in either case that a different starting point should be adopted for each of them.

As Stuart-Moore VP observed in Tso Sze Kin, it is trite that where two people set out to commit a crime together, each taking a different role but with an awareness of what the others purposed to do, there should be no distinction made between the sentences based on the roles they have played. Both defendants pleaded guilty and for this reason each of them is entitled to a one-third discount.

D1 cannot be said to be of very young age at the time of the offences. Moreover, he has committed two offences within a short span of time. I however note that he is younger to D2 by about 7 years. He might have committed the offence under undue influence and for this I will give D1 a further discount of 3 months.

For D2, I have considered whether a further discount should be given to him for his effort in assisting the police, though it has no causal relationship with the guilty plea of D1.

In HKSAR v So Hung Leung CACC 139/1999, the Court of Appeal held that no discount is warranted when the applicant provided statements implicating another person knowing that person is going to plead guilty. It is not the case here.

I have had regard to Z v HKSAR [2007] 10 HKCFAR 183 and HKSAR v Kay Sik Hong Billy CACC 145/2011. The assistance provided by D2 did not, in fact, lead to any fruitful result. However, in my judgment his efforts should be recognised and for this I will give him a discount of 3 months.

Defendant Chan Chin-ho, please stand up.

For Count 1, I sentence you to 4 years and 5 months’ imprisonment. For Count 2, I sentence you to 4 years and 1 month’s imprisonment. Having regard to totality, I order 22 months of Count 2 to run consecutively to the sentence imposed on Count 1. You are to serve a total sentence of 6 years and 3 months for the two counts.

Defendant Lee Kai-chung, please stand up.

For Charge 1, I sentence you to 4 years and 5 months’ imprisonment. For Charge 2, I sentence you to 4 years and 1 month’s imprisonment.

Having regard to totality, I order 22 months of Charge 2 to run consecutively to the sentence imposed on Charge 1. You are to serve a total sentence of 6 years and 3 months for the two charges.