HKSAR v. NGAI KWOK WAI

DCCC 90/2019

[2019] HKDC 794

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 90 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Theft" (Charge 1) and a charge of "Robbery" (Charge 2). The subject matter of each charge is a mobile phone.

Summary of Facts

Charge 1

2.  Mr. CHAN (PW1) is acquainted with the defendant.  About 9:00 p.m. on 16 September 2018, he bumped into the defendant outside V City, Century Gateway in Tuen Mun.  The defendant told PW1 that his phone ran out of battery and asked to borrow PW1's phone.  PW1 passed his Samsung mobile phone (valued at $5,700) to the defendant, who then made a call and started walking away.  PW1 thought it was due to weak signal. Suddenly, the defendant ran away with PW1's phone.  PW1 gave chase but failed to catch the defendant.

3.  PW1 called his own phone number but the phone was turned off.  He was unable to reach the defendant and alerted the Police on the following day.

Charge 2

4.  About 6:50 p.m. on 10 October 2018, a 12-year-old boy surnamed CHOW (PW2) was playing with his Huawei cell phone (valued at $2,580) at a fast food restaurant situated at Hing Fat House, Nos.9 to 13 Kau Yuk Road in Yuen Long.  He later went to use the washroom.  When PW2 came out of a cubicle, the defendant was staring at him. PW2 proceeded to wash his hands at the sink.

5.  Suddenly, the defendant swept away PW2's glasses and spread pepper powder on his face.  He then took the phone away from PW2's left trouser pocket and fled.  PW2 immediately washed his eyes and sought assistance from the restaurant staff.  The Police was alerted.

6.  PW2 was sent to the hospital for examination.  He was found suffering from mild itchiness of both eyes.

7.  The Police found a plastic bottle containing pepper powder in the washroom of the restaurant.  Both PW2 and the defendant were captured by CCTV entering and leaving the washroom.  The defendant's face and clothes could be seen clearly on the footage.

Admissions

8.  The Police arrested the defendant on 1 November 2018.  Under caution, he admitted having committed both offences out of greed.  He sold the 2 phones at $1,800 and $900 respectively and spent the money on food.

Mitigation & Sentence

9.  The defendant is 40 and single.  He has 18 conviction records, which included 2 robbery offences, 6 theft offences and several drug-related offences.  Defence counsel Mr. CHONG informed me that the defendant was a casual delivery worker at the time of his arrest. He resides with his girlfriend and does not maintain contact with his family members.

10.  In mitigation, Mr. CHONG submitted that the defendant's 2 robbery convictions are dated 1991 and 1998 respectively; whereas his last theft conviction took place in 2013.  Mr. CHONG pointed out that the defendant has been struggling with his drug problem.  Regarding the pepper powder used in Charge 2, Mr. CHONG explained that it was of domestic nature; the defendant carried the bottle with him on a daily basis for adding pepper to his food.

11.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  A clear message must be conveyed to the general public that robbery is a dead serious crime and that the offenders would most certainly be punished by long-term imprisonment.

12.  Mr. CHONG submitted 2 cases on sentencing HKSAR v Lee Cheuk Fai HCMA 1238/2002 (for Charge 1) and HKSAR v Chan Sai Chiu [2001] 1 HKLRD 478 (for Charge 2). Prosecuting counsel Mr. SHIU accepted that both cases are still good law.

13.  According to Lee Cheuk Fai, the starting point for theft of a mobile phone by way of "stealing by borrowing" is 4 months' imprisonment. According to Chan Sai Chiu, for a robbery involving "pepper-throwing", the appropriate starting point is 4 years' imprisonment.

14.  For Charge 2, the most atrocious element is the young age of PW2. The experience of being robbed must have been particularly traumatic for a 12-year-old boy. Throwing pepper at someone's face could have easily caused blindness and/or respiratory injuries to the person. It is most fortunate that PW2 was not seriously injured.

15.  The defendant is no stranger to either theft or robbery offences. I am aware that his last similar conviction is dated 2013; however, he is still a repeated offender and continued to commit other types of offences. He was discharged from prison at the end of February 2018 and committed the present offences 7 months later. I take the view that the appropriate starting points for Charges 1 and 2 are 4.5 months and 4.5 years respectively. A one-third discount is given for the timely guilty pleas, reducing the sentences to 3 months and 3 years respectively. Apart from this, I see no other mitigating factors which warrant any further reduction.

16.  Both charges in the present case are separate and distinct. Bearing in mind the totality principle, I consider a global starting point of 57 months to be appropriate. With the timely guilty pleas, the overall sentence is reduced to 38 months. Hence, I order 2 months in Charge 1 to run consecutive to Charge 2, arriving at a total prison term of 38 months.

17.  The defendant has been continuously in trouble with the law since his teenage years. The court can only do so much in deterring a persistent criminal by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.