HKSAR v. WONG CHIN WANG

DCCC709/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 709 OF 2012

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Reasons for Sentence

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1. The Defendant was convicted upon his own plea of two charges.  The 1^st Charge was for the offence of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210, Laws of Hong Kong.  The 2^nd Charge was for the offence of assaulting police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Chapter 212, Laws of Hong Kong.

Facts

2. The victim of the 1^st Charge (“the taxi driver”) was a night shift taxi driver.  When he was driving his taxi around 2:08 a.m. on 11 June 2012, the defendant boarded his taxi, and directed him to drive and eventually stop at the bus stop outside Kwai Chung Estate Shopping Centre.  The taxi driver then felt a hard object at the left side of his neck and heard the defendant declaring robbery and demanding him to hand over all his money.  He turned around and saw the defendant holding a 6-inch chopper (excluding the handle) and pointing it at his (the taxi driver’s) neck.  The taxi driver fended off the chopper and said he had no money.  The defendant then snatched away the shoulder bag of the taxi driver from behind and fled.  Inside the shoulder bag, there were amongst other things 3 water bottles, a notebook, 7 cards, a note and coins worth around $50 to $70.

3. The taxi driver made a report to the police.  PC9794 arrived at the scene and conducted enquires.  Around 3:55 a.m., PC9749 located the defendant near Room 2201 on 22/F of Hiu Kwai House.  Under caution, the defendant refused to disclose where he had been.  PC9749 then searched the defendant and found a large number of coins with a total value of $85 in the defendant’s trousers pocket.  The defendant asked PC9747 to arrest him if there was enough evidence.  The defendant was then duly arrested and cautioned.

4. Subsequently, other police officers including the victim of the 2^nd Charge SPC51733 arrived at the scene.  When SPC51733 was handing a prisoner’s hood and some exhibit envelopes to other police officers, the defendant who was at that time squatting down on the floor suddenly shouted at SPC51733, asking the officer why he was looking at him.  The defendant further stood up and bumped his forehead against the face of SPC51733.  The defendant was immediately subdued and arrested for the second offence.

5. SPC51733 was sent to hospital for treatment.  Upon medical examination, it was found that he had sustained superficial abrasion at the central part of his upper lip, and a tiny abrasion in his left middle finger.

6. The taxi driver positively identified the defendant in an identification parade.  Some of the stolen property including a black water bottle (Exhibit P1), a notebook (Exhibit P2), 7 cards (Exhibit P3) and a note (Exhibit P4) were recovered on the floor in the vicinity of the crime scene of the first offence.

Criminal record

7. The defendant has 21 previous convictions involving 31 offences.  He has one previous conviction of robbery in 1990.  He was no previous conviction for assaulting police officer, but he has two convictions for resisting a police officer in 1990 and 2009.  He has also been convicted of offences relating to use of violence on 8 occasions. His last sentences were imposed on 4 August 2009.  He was sentenced to Drug Addiction Treatment Centre for the offence of possession of dangerous drugs, and fined $5,000 for resisting a police officer.

Personal and family background

8. The defendant is 37 years old, single. He was born in Hong Kong and received only primary education.  He had previously worked as a vehicle attendant and a goods vehicle driver, but at the time of these offences, he was unemployed.  He has a son aged 9 born out of his relationship with his ex-girlfriend who has now separated from the defendant. The defendant has entrusted his son to the care of his elder sister.  The defendant receives Comprehensive Social Security Assistance of $7,000 a month. He contributes $3,000 to his elder sister for maintaining and looking after his son.

Mitigation

9. On the defendant’s criminal record, Mr. Finny Chan, Counsel for the defendant, submitted that although the defendant had one previous similar conviction of robbery, that offence took place in 1990 when the defendant was only 15 years old.  He said that the defendant had a number of convictions relating to use of violence because he was suffering from extreme depression and was unable to control himself, but he did not have the money to consult psychiatrist.  He informed this Court that the defendant had stopped taking drugs at the time of his arrest.  He stressed that the defendant had stayed out of trouble for 2 years since his last sentence before he committed the present offences. 

10. As to the circumstances of the offences, Mr. Chan submitted that this case was closer to a case of snatching rather than robbery because the defendant snatched away the shoulder bag of the taxi driver at the time when the knife in his hand was already fended off by the taxi driver.  Mr. Chan stressed that the defendant had no intention to injure the taxi driver, though he was well built and had a knife with him.  He said this was only a case of a heavily depressed man without enough money committing a foolish offence.  He referred to the cases of HKSAR v Mohammad Amjad (CACC423/2011) and HKSAR v Hussain Shakil (CACC387/2011) and submitted that the proper starting point should be imprisonment for 5½ years or less than 6 years.

11. In respect of Charge 2, Mr. Chan submitted that there was certain degree of provocation on the part of the police officer because he was staring at the defendant.  He asked for a short consecutive sentence.

12. All in all, Mr. Chan asked this Court to take into account the defendant’s guilty plea, his remorse and the saving of court’s time.  He asked for leniency.

Reasons for sentence

13. I shall deal with the 1^st Charge first.

14. Taxi robbery has always been considered to be a serious offence.  Not only did the culprits use or threaten to use force to deprive innocent victims of their property, the taxi drivers are a group of vulnerable persons who need the protection of the court.  Taxi drivers cannot refuse hire of any lawful customer, and must drive to the destination directed by the customer, even though the location is dark and remote, but they work alone and do not have the benefit of security protection.  The Courts have therefore said time and again that the proper sentence for taxi robbery is imprisonment for 5 to 6 years: The Queen v Li Lun Hoi (CACC1387/1983), The Queen v Tran Van Anh [1993] 3 HKCLR 122; and Mohammad Amjad.

15. In the present case, there was of course the aggravating factor that the defendant used a knife to point at the taxi driver during the course of the robbery.  The Court of Appeal laid down the sentencing tariff in Mo Kwong Sang v The Queen [1981] HKLR 610 that the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife which he displayed to the victim should be 5 years’ imprisonment.  The Court of Appeal also said that little account should be given to the previously clear record of anyone who took part in an armed robbery.

16. Mr. Chan sought to argue that this case was more like snatching than robbery.  I do not accept this submission.  In my view, it would not be right to consider each act done by the defendant towards the victim in isolation, but the whole course of event should be considered. It was clear that the defendant pointed a 6 inches chopper at the neck of the victim.  When the victim fended off his knife, he snatched away his shoulder bag.  All these events happened one after the other in quick succession, and I had no doubt that when the defendant was snatching away the shoulder bag, the victim was under fear of violence generated by the defendant’s demand of money reinforced by the threat generated by display of the knife.  It would be absurd to say that it was a case of robbery when the victim handed over the shoulder bag to the defendant when the defendant declared robbery with the display of the knife, but it was only a case of snatching (with a lower criminality) when the defendant took the bag away himself irrespective of the wish of the victim.  In my view, this is a clear case of armed taxi robbery with a knife being displayed to the victim.

17. From the authorities referred to, it is clear that the defendant will receive a prison sentence and that the starting point of the sentence to be imposed will not be less than 5 years according to Mo Kwong Sang.  With the aggravation that this was a taxi robbery, the sentence must be higher than 5 years, and the question is by how much.  Mr. Chan submitted that the proper starting point should be imprisonment for 5½ years or less than 6 years.

18. I have considered the cases submitted by Mr. Chan.  In Mohammad Amjad, the appellant was sentenced to 5½ years’ imprisonment for taxi robbery.  The facts revealed that he together with 3 other persons robbed a taxi driver who sustained injuries in the course of the robbery.  The facts however did not reveal that a knife or any weapon had been used.  Furthermore, the Court of Appeal did not say that 5½ years’ imprisonment was the proper starting point but merely upheld the sentence imposed by the trial judge and commented that the sentence was within the range of the customary starting point of 5 and 6 years’ imprisonment.

19. In Hussain Shakil, the appellant pleaded guilty to two counts of robbery which he committed together with other culprits.  In the first offence, he used a smashed beer bottle to threaten the taxi driver.  In the second one, he held a beer bottle in his hand.  The Court of Appeal considered that the proper starting point of the sentence for each offence was 7 years’ imprisonment.

20. I do not find the authorities submitted by Mr. Chan helpful.  On the other hand, I have considered the following cases.

21. In Tran Van Anh, 3 men robbed a taxi driver of his wallet containing $550.  One man grasped the hair of the taxi driver and pointed a sharp object at his throat. The Court of Appeal considered the proper starting point should have been 6 years’ imprisonment.

22. In Secretary for Justice v Tso Tze Kin [2004] 2 HKC 139, two men robbed a taxi driver of $200.  The driver’s neck was grabbed and a pair of scissors was pointed at him.  The Court of Appeal considered the appropriate starting point was 7 years’ imprisonment.

23. In the present case, I note that the defendant acted alone, and that he only touched the victim’s neck with the knife for a very brief moment when he declared robbery, and he did not use further violence by using the knife or grabbing the hair or the neck of the victim.  I accept that he had no actual intention to harm the victim, and he merely wanted to threaten him.  Under these circumstances, I am of the view that the proper starting point should be a lower than those in Tran Van Anh and Tso Tze Kin.  I adopt imprisonment for 5 years and 9 months as the starting point.

24. I shall not increase the starting point in light of the defendant’s criminal record.  He had not been convicted of any offence after his last sentence for 2 years.

25. As far as mitigating factor is concerned, I have considered carefully Mr. Chan’s submission but the only valuable mitigating factor in this case is the defendant’s guilty plea.  He is entitled to the usual one-third discount.  He is therefore sentenced to 46 months’ imprisonment for the 1^st Charge.

26. In respect of the 2^nd Charge, there was absolutely no reason for the defendant to bump his head against the victim officer.  Even if the victim officer had stared at him (which the prosecution facts do not reveal), that could never amount to provocation because the defendant could easily stay away from the glaring by not looking back.  Police officers must be protected when they were in due execution of their duties.  A prison term is called for.

27. I take into account the fact that the victim officer suffered only minor injuries.  I adopt 3 months’ imprisonment as the starting point.

28. Again, the only valuable mitigating factor is the defendant’s guilty plea.  He will be given the usual one-third discount.  He is sentenced to 2 months’ imprisonment for the 2^nd Charge.

29. The two offences were completely different in nature involving different victims.  Furthermore, the defendant committed the second offence after he had already been arrested for the first offence.  I bear in mind the totality principle, but the two offences were totally unconnected.  Under these circumstances, I am of the view that the defendant should serve the two sentences consecutively so as to properly reflect the overall criminalities of his offences. 

30. For these reasons, the defendant has to serve a total of 48 months’ imprisonment for these two offences.