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DCCC 34/2020
[2020] HKDC 559
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 34 OF 2020
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| Present: |
Mr Kevin Wong, Counsel on Fiat, for HKSAR |
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Mr Cheung Chi Wai, David, instructed by Cheung & Yeung, assigned by Legal Aid Department, for the defendant |
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REASONS FOR SENTENCE
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1. Defendant is convicted of a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.
Facts
2. On 14 October 2019 at around 0534 hours, defendant entered “7-Eleven” at Shop E on the ground floor of 125 Des Voeux Road West, Hong Kong and claimed to purchase a lighter. He presented the ATM card to PW1, the shopkeeper. When he was later informed the transaction was not successful with unknown reason, he suddenly took out a cutter and pointed at PW1. Defendant demanded her to hand over all the cash. Feeling threatened, PW1 took out HK$2,800 cash from the cash register and gave it to the defendant. Defendant fled from the scene and the case was reported.
3. A week later, defendant was arrested when he walked past a building nearby.
4. Upon search, one Hang Seng ATM card in the name of Chan Yuk-wah and HK$100 cash were found on defendant.
5. Upon house search, a pair of white shorts, a pair of blue sneakers, a pair of blue slippers and one white T‑shirt were seized.
6. CCTV camera captured the incident.
7. Under caution at the time of arrest, defendant stated that “The robbery occurred in 7‑Eleven was done by me because I have been jobless recently”.
8. Defendant also stated in the video‑recorded interview on the day of arrest, inter alia, that:-
(a) On 14 October 2019 at around 5 am, he was loitering near his home;
(b) He has been jobless for the past few months so he relied on his mother for financial support;
(c) The ATM card was given by his mother and he would pick up money in the relevant account irregularly;
(d) At the material time, he went to 7‑Eleven and wanted to check if his mother had transferred any money into the relevant account;
(e) After knowing the transaction was not successful, he then took out a blue cutter, pointed to PW1 and asked for money;
(f) He left 7-Eleven after getting the money from PW1 and he threw away the cutter in the rubbish bin near the McDonald in Queen’s Road West;
(g) He spent most of the money he robbed with only $100 cash left; and
(h) He confirmed that he wore the white T-shirt, a pair of white shorts and a pair of blue sneakers seized by the police when he committed the offence.
Criminal record
9. Defendant is a man of clear record.
Mitigation
10. Defendant is aged 24 years old. He was born in Hong Kong and received education up to Form 3.
11. He is divorced with a 3-year-old daughter who lives with his former wife. His father, aged 55, is unemployed and is suffering from lung cancer and his mother is a part-time laundry worker. His sister is a clerk in a construction site and he also has a grandmother. Family members all live together, excluding the defendant.
12. The defendant lived alone. After schooling, defendant had taken various jobs until July 2019 when he became unemployed.
13. Defendant was ordered by court in the family proceedings to pay $3,000 per month to his former wife as maintenance for the child.
14. Defence counsel submitted the defendant is now deeply remorseful as to what he has done and he was co-operative with police immediately upon apprehended, he urges this court to deal with him with leniency.
15. It was said that at the material time, defendant had been unemployed for three months already and he could not support his own living, let alone pay maintenance to his former wife and daughter. In fact, he had to resort to the financial support from his mother.
16. Apart from financial stress, defendant was said to be under enormous stress and anxiety due to his father’s illness.
17. Defence counsel submitted that on the day in question, defendant went to the “7-Eleven” to check if his mother had transferred money into the ATM card account. When he realised that the transaction failed, he lost control and he pulled out the cutter from his pocket and pointed at the shopkeeper out of impulse.
18. It was said that the commission of offence was not premeditated and that he always kept in his work pants that he was wearing at the time tape and paper cutter.
19. Defence counsel submitted that the use of ATM card would allow identity of himself being traceable. He says this is in support of defendant’s contention that the commission of the offence is not preplanned.
20. Mitigation letters from defendant’s father, mother, elder sister, aunt and relative all say the defendant had been working studiously to earn for the family. They said that due to a lack of parental control, defendant had been lured to take drugs but then he had later quitted the habit and had got married with a daughter. Although he subsequently divorced, it was said the defendant supported the family and that even though he had divorced, he had been supporting the former wife and daughter.
21. These mitigation letters also say that since the defendant’s father got lung cancer, the father could no longer support the family and the defendant had been contributing to the household expenses. He would also accompany his father to hospital for treatment. They say defendant committed the present offence due to impulse and they asked this court to give the defendant a chance to rehabilitate.
22. Defence counsel referred this court to the Mo Kwong Sang v R [1981] HKLR 610, HKSAR v Lam Hoi, CACC 105/2016, HKSAR v Wong Cheung [2011] 5 HKLRD 171 and HKSAR v Ho Cheuk Wai, HCCC 226/2018.
23. He asks this court to accept a lower sentencing starting point than the one in Ho Cheuk Wai case where the court adopts a sentencing starting point of 5 years and 3 months.
Discussion
24. A person convicted upon indictment of this offence is liable to imprisonment for life.
25. The applicable sentencing guidelines for the offence of robbery are laid down in the Court of Appeal case of in Mo Kwong Sang, where it is said that in robbery cases with a knife or other dangerous weapons shown to the victim, a starting point of 5 years’ imprisonment should be imposed.
26. Further, in the case of HKSAR v Lam Hoi, HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 699 and HKSAR v Wong Cheung [2011] 5 HKLRD 171, the Court of Appeal deemed it an aggravating factor in sentencing if the premises involved is a 24 hours convenience store.
27. Although defence counsel has pointed to this court that as Roberts CJ in Mo Kwong Sang case says that there is nothing to prevent the court from adjusting the sentence to accord with the record, age or other personal circumstances of the accused or for taking into account the particular facts of the case before the court, the stance of whom was approved by McWalters JA in Lam Hoi case in paragraph 55 of his judgment. This court finds in the circumstances of this case not appropriate to depart from the sentencing guideline.
28. In Lam Hoi case, the defendant used an 8-inches knife in robbery of three different convenience stores on three consecutive dates. 6 years’ imprisonment was adopted as the sentencing starting point.
29. In Ho Cheuk Wai case where defendant robbed the same convenience store two times on two months apart using a cutter with blade of 7 to 8 cm exposed, the court used a sentencing starting point of 5 years and 3 months for each count of robbery.
30. Defendant there, as in our case here, is a man of clear record.
31. In the case here, the defendant has displayed the cutter to the shopkeeper in the early hours of the day.
32. This court sees no reason why the sentencing starting point of 5 years should not be adopted.
33. Further, the defendant has committed the offence in the convenience store which, as said earlier, amounts to an aggravating factor in sentencing and the court will therefore enhance the sentencing starting point by 3 months to 5 years and 3 months.
34. Although the defendant is a man of clear record but armed robbery is a very serious offence. The fact that defendant has been co-operative with the police would not allow a further or justify further sentencing discount over and above the one-third sentencing discount afforded to the defendant by reason of his guilty plea.
35. Further, this court, as indicated in court, has reservation to accept that defendant has not preplanned the commission of the offence. He was carrying the cutter around, which he says was usual as he used to keep a cutter and the tape in his work pants as a casual worker in construction site. But he was out of job already for three months. The shorts was white in colour and it is unreasonable for a construction worker to wear shorts in a construction site. Further, when the defendant was arrested, he was not carrying any cutter or tape.
36. This court has also fully considered all mitigation submission and mitigation letters, but this court finds that the only valid and useful mitigating factor is his guilty plea of which, as said earlier, he is entitled to full one-third sentencing discount.
37. Accordingly, defendant is sentenced to 3 years 6 months’ imprisonment for this offence.
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