HKSAR v. MAN CHUEN LEUK

DCCC 45/2018

[2018] HKDC 959

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 45 OF 2018

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REASONS FOR SENTENCE

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Background

1.  Defendant was convicted on his own plea and agreement to summary of facts to a charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. 

Agreed facts

2.  According to the agreed summary of facts, the victim, a Form 6 female student, was walking along back home at 5.30 pm on 25 October 2017. 

3.  When she was walking up the staircase outside Shun Tin Multi-storey Car Park, Shun Tin Estate, Sau Mau Ping, she saw defendant walking towards her face to face.  When she was at the top of the staircase, she felt her thighs were hit by a paper bag.  She turned and saw the defendant brandishing a 16incheslong fruit knife in his right hand while the white paper bag was hung over his left arm.  Victim and defendant were only about a body’s width apart.

4.  Defendant then pointed knife at the victim and said, “Robbery, give me the phone and come down.”  At the same time, defendant attempted to snatch the victim’s mobile phone.  Victim grabbed the wrist of the defendant to resist and struggle ensued.  Defendant then let go of the phone, turned around and ran down the staircase.  Victim lost balance, fell backwards and dropped her phone, resulting in damage to the screen of the phone.

5.  Report was made to the police and police checked the CCTV footage of Tin Kuen House, Shun Tin Estate and found defendant was seen wearing the outfit as described by the victim.  When he left Tin Kuen House and when he returned there, except that he was also wearing a red cap on his return.

6.  Upon inquiries, defendant stated that he went downstairs from his home to rob someone of her phone but failed. 

7.  Defendant was arrested for attempted robbery.  Under caution, he stated “Ah Sir, I only robbed the girl of her phone because I owed others a debt of $20,000.  I failed in the robbery, so I returned to my house at Tin Kuen House, Shun Tin Estate.”

8.  A house search was conducted and a grey tank top, dark blue jeans, black shoes and red cap were seized.

9.  Again under caution, defendant admitted the red cap was kept in a paper bag at time of the offence.

10.  In the video-recorded interview on 27 October 2017, defendant stated, inter alia, the following:-

(a) He urgently needed 2,000 as someone was chasing his family to collect the debt;

(b) When he saw the victim, he thought that her phone would help him;

(c) As a result, he decided to rob due to momentary greed but he failed;

(d) He ran away after PW1 fell down as he was afraid PW1 was injured;

(e) He only carried a paper bag at the time of the offence which contained a pack of chocolate, a pack of drink and a red cap;

(f) The paper bag was disposed of at a refuse chamber;

(g) He was just passing by the offence location at the material time.

11.  Defendant admitted that he attempted to rob the victim of her mobile phone.

Criminal Record

12.  Defendant has five previous convictions, four relating to dangerous drug, no similar conviction in the past.

Mitigation

13.  Defendant is born in Hong Kong, now aged 26 and single.  He lives with his mother.  He works as a part time waiter by occupation and earns $500 per day.  He received education up to Form 2. 

14.  His mother suffers from depression and psychosis and is a CSSA recipient. 

15.  Defendant was last released from Pak Sha Wan Correctional Institution on 17 March 2016.

16.  Miss Li, defence counsel for the defendant, said that defendant has quitted his drug habit on his release from Pak Sha Wan.  She also submitted a mitigation letter from the defendant which says that he is aware that he has committed a very serious offence and is deeply remorseful.  He regrets what he has done to the victim and would apologise for the misdeeds.  He says he would shoulder responsibility for the commission of the offence and would start afresh on release from prison.  He asks the court for leniency.

17.  Initially, in mitigation on defendant’s behalf, Miss Li submitted that the defendant committed offence because his mother owed loan shark money and was paid house visit by these people demanding repayment.  Later, Miss Li clarified that actually it was the defendant who owed the loan shark money and not his mother. 

18.  Defendant said the reason why he carried the knife when he left home was in case he should meet people from the loan sharks people.  He said on the day in question, he saw the victim and thought he would get the phone from the victim, and when the victim resisted, he got scared and fled.

19.  Miss Li for the defendant asked this court to adopt the stance in Mo Kwong Sang case [1981] HKLR 610.  She said the sentencing starting point when knife was displayed is 5 years.  She said the present offence is not a well planned one and the victim did not suffer any injuries nor loss.  She also said defendant committed the offence on his own and had admitted guilt when arrested and in the subsequent video recorded interview.  In particular, he pleaded guilty at the first available opportunity.  

Discussion

20.  Attempted robbery is a very serious offence.

21.  In this case, defendant brandished a 16 inches long fruit knife when he was only short distance from the victim.  No doubt, the present case is one of armed robbery as depicted in the Mo Kwong Sang case. 

22.  It is noted, however, that the defendant acted alone and the commission of the offence does not involve extensive planning.

23.  Although the defendant had tried to snatch the phone from the victim and the victim did struggle with the defendant, minimal violence was used by the defendant.

24.  It is also a fact that the  victim fell onto the ground when the defendant fled, but there is no evidence of injury to the victim. 

25.  No doubt, however, the incident must have an impact on the victim in future days.

26.  The screen of the mobile phone of the victim was damaged as a result. In this case, the defendant has used the red cap after the commission of the offence to conceal his identity and to avoid his capture.  This is an aggravating feature.  In view of the mitigation by the defence counsel, I am not now going to enhance the sentencing starting point.

27.  Having considered the circumstances of the offence, the appropriate starting point is, as persuaded by Miss Li, 5 years’ imprisonment. 

28.  In sentencing of serious offences like the present one, personal background of the defendant is usually not a valid mitigating ground.  Whilst this court has considered the mitigation done, the only useful mitigating factor is really his timely plea, of which he is entitled to one-third sentencing discount. 

Sentence

29.  Accordingly, defendant is sentenced to 3 years and 4 months, i.e. 40 months’ imprisonment.