HKSAR v. CHAN WING YIN

DCCC 204/2018

[2018] HKDC 866

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 204 OF 2018

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Robbery". He used a knife to rob a 38-year-old female Indonesian domestic helper $40,000 cash as well as her personal properties.

Summary of Facts

2.  Madam Salim (PW1) is a foreign domestic helper working in Hong Kong.  She has a fair command of spoken Cantonese.

3.  About 5:35 a.m. on 5 November 2017 (a Sunday), PW1 was walking alone near Tin Ha Road Playground, Hung Shui Kiu.  She was carrying a black handbag and a pink recycle bag which contained food and clothes. The black handbag contained a wallet, PW1's HKID card, an Octopus card, $40,000 cash, 10 red packets, 2 keys and 2 mobile phones (collectively "the Handbag").

4.  Upon PW1's reaching Lamppost VA 6772 on Tin Ha Road, a Chinese male (later identified as the defendant) took out a knife (with a pointed tip and a 15-cm long blade) and rushed towards her from behind.  The defendant grabbed PW1's recycle bag with his left hand.  PW1 turned around and the defendant said to her in Cantonese "Robbery". PW1 asked in Cantonese "Why rob, those are food only".  The defendant replied in Cantonese "No negotiation".

5.  The defendant snatched the recycle bag from PW1.  He then tried to snatch the Handbag from her as well.  PW1 struggled and held onto the Handbag firmly with both hands.  The defendant slashed PW1's right hand horizontally once with his knife.

6.  PW1's slash wound was bleeding seriously, yet she was still holding onto the Handbag firmly with both hands.  The defendant tried to snatch the Handbag from PW1 with force and caused her to fall forward onto the ground.  The defendant then kicked PW1 a few times.  After a struggle of about 1 minute, the defendant snatched the Handbag from PW1.  He kicked PW1 once more before running away. 

7.  Footages of CCTV cameras installed in the vicinity of the crime scene captured the course of the robbery as described above.

8.  PW1 alerted the Police and was conveyed to Tuen Mun Hospital about 6:15 the same morning.  Her right thumb (including tendons and the joint capsule) was seriously injured.

9.  The defendant was arrested the next morning and his home was searched.  A knife (E1) was seized from the kitchen.  Clothes and shoes which closely resembled those worn by the culprit were found in his bedroom and the staircase outside his home.

10.  An identification parade was held on 27 November 2017.  PW1 positively identified the defendant as the culprit.

11.  Government Chemist confirmed that the DNA obtained from the bloodstain on the blade of E1 could have originated from PW1 (with a Radom Match Probability of 1 in 774 trillion).  A predominant source of DNA found on the handle of E1 could have originated from the defendant (with a Radom Match Probability of 1 in 18.7 billion).

12.  In his video recorded interview, the defendant claimed that he had no recollection of his whereabouts at the time of the alleged robbery.

Mitigation & Sentence

13.  The defendant is 41 and married.  He has 4 conviction records, which included 2 violence-related offences.  He was given a 3-month Hospital Order in October 2010 for his last 2 offences.

14.  The defendant informed me that prior to his arrest, he worked as a security guard earning $9,000 per month.  His wife resides in the mainland and they have no children.  The defendant claims to be suffering from psychosis and attends regular psychiatric appointments at the clinic next to Castle Peak Hospital.  He stated that his conditions are currently under control and he has been prescribed with medication during his remand period.  In mitigation, the defendant explained that he committed the robbery because he took cocaine.  He claimed that he started to abuse cocaine about 6 months prior to the present offence.

15.  In the present case, the defendant used a knife to rob PW1. He took from her $40,000 cash and other personal properties, none of which was recovered. He also slashed PW1's right hand with his knife, causing serious injuries to her right thumb.

16.  I take judicial notice of the minimum allowable wage of a foreign domestic helper working in Hong Kong in 2017, which was about $4,300 per month. Based on that figure, the sum of cash which the defendant took from PW1 represented roughly 10 months of her salary. According to PW1, she was going to send the $40,000 to her family in Indonesia[1]. Based on common knowledge, it is highly likely that PW1's family depended on the remittance of her earnings. What the defendant did to PW1 must have been devastating and traumatic to her and her family.

17.  According to the Court of Appeal's decision in MO Kwong-sang v The Queen [1981] HKLR 610, the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victim, should be 5 years' imprisonment. If any physical violence, which includes tying up the victim, was used, a sentence of 7 years should be considered.

18.  In the present case, I will adopt a starting point of 6.5 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 52 months. Apart from this, I see no other mitigating factors which warrant any further discount. I therefore sentence the defendant to 52 months' imprisonment.