HKSAR v. WAI KA CHEUK

DCCC 541/2020

[2020] HKDC 719

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 541 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “Robbery”, contrary to Section 10 of the Theft Ordinance, Cap 210 (1^st charge) and one charge of “Possession of offensive weapon in a public place”, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245 (2nd charge).

THE FACTS

Robbery charge (Charge 1)

2.  On 6 May 2020 at around 3:50 am, the defendant entered a 7-Eleven convenience store in Tin Shui Wai (“the Shop”), carrying a 57 cm machete in his right hand.  He was wearing a black cap, a black face mask and a pair of black gloves. 

3.  The defendant shouted “Robbery!” at the staff of the shop.  Feeling scared, the staff gave the defendant $2,900.  The defendant then left.  The close-circuit television of the Shop captured the above incident. 

4.  Later on, the police checked the CCTV of the vicinity and identified the defendant based on his clothing and stature in the footage of Shui Sing House (“the Building”) in Tin Shui Wai.

Possession of offensive weapons in a public place (Charge 2)

5.  At around 6.15 am, police intercepted the defendant at the 27^th floor lift lobby of the Building.

6.  Upon searching the defendant, it was found in defendant’s possession a black wallet containing $2,970 and three folding knives which were around 34.5 cm, 22 cm and 19 cm long respectively.

7.  In a subsequent video recorded interview in relation to Charge 1, the defendant stated that at around 3.45 am on the material day, he left home and cycled to the Shop.  He then used a machete to rob the Shop.  He pointed the machete at a shop staff once and stole around $3,000.  He then cycled back home and did not spend the money.  The defendant claimed he had no intention to hurt anyone.  He only committed the offence out of momentary greed and he was remorseful.

8.  For Charge 2, the defendant stated that around two to three years ago he borrowed around $10,000 odd dollars.  He worried that people may chase him for the money and pose a threat to him.  When the police intercepted him, he intended to go out to have breakfast and then go to work.

MITIGATION

9.  The defendant was born and raised in Hong Kong.  He is 35 years old.  He has a clear record.  He graduated at Hong Kong Shue Yan University.  His father passed away in 2003.  He lives with his mother and sister who is an assistant at a clinic and a registered nurse respectively.  The three of them have a close and adhesive relationship.  The defendant had a stable job.  He worked as a delivery person earning a modest income.  His life revolves around his work, leading to a regimented daily life.

CONSIDERATIONS

10.  Robbery is a serious offence.  The maximum sentence is life imprisonment.  In accordance with the guidelines in R v Mo Kwong Sang [1981] HKLR 610, the appropriate starting point for an ordinary case of armed robbery where a knife or other dangerous weapon was carried and displayed was 5 years’ imprisonment.  The Court of Appeal said little account should be given to the previously clear record of anyone who took part in an armed robbery.

11.  Mr Wong for the defence referred to R v Asim Hafiz Tahir Mahmood CACC 283/2016.  The appellant of that case entered a 7-Eleven convenience store at 6:15 pm, went behind the counter and pointed a 6-inch folding knife at the safe, demanding the staff of the store to open it.  The staff opened the cash till instead.  The appellant then grabbed $4,490 in cash.  The Court of Appeal found the starting point of 5 years’ imprisonment is appropriate.

12.  Having viewed the CCTV footage, I am satisfied that the instant robbery involved no physical violence.  However, the robbery did involve an invasion of business premises.  In my view, the staff member of the convenience store working alone in the early hours is vulnerable to this type of robbery and requires protection.

13.  As regards to Charge 1, I agree with the defence that it was carried out in a rather unsophisticated manner.  The defendant was merely holding the machete with his arm down and the course of conduct lasted for 17 seconds and the amount stolen was $2,900.  He was co-operative with the police throughout.

14.  However, I also noted that this was not an offence committed on the spur of moment.  The defendant took a large machete of length 57 cm for use in the robbery.  It is heavy and looks threatening.  I would describe it as lethal weapon which can inflict great bodily harm.  He was wearing a cap and a face mask when he was committing the robbery which made identification difficult. 

15.  But at the end, I agree with the defence and consider a starting point of 5 years to be appropriate.

16.  I now deal with Charge 2, the charge of possession of offensive weapon, for which the maximum penalty is 3 years’ imprisonment for people aged 25 or above.  There is no guideline sentence for Charge 2 as the circumstances of each case can vary so much.

17.  In respect of Charge 2, Mr Wong referred me to two authorities, namely 香港特別行政區訴李國民 HCMA 508/2018, and 香港特別行政區訴苟正东 HCMA 479/2016.  In short, according to these two authorities, possession of a single folding knife of about 15 cm in length, the court adopted a starting point of 6 months’ imprisonment.

18.  Mr Wong further submitted that the defendant was found with three folding knives.  However serious it may appear, he was stopped shortly after he left his home outside the lift lobby when he was going out for breakfast.  The duration he possessed the said weapons in a public place was extremely trivial.  Mr Wong submitted that the danger and harm he posed to the public was minimal. 

19.  This, I disagree.  But for the police’s swift action, the defendant would have brought the three folding knives to the public.  He would pose a serious threat to the society. 

20.  In addition, three knives were involved.  They are longer in length than that mentioned in the authorities that Mr Wong referred to.  They are around 34.5 cm, 22 cm and 19 cm long.  I found that they are deadly weapon and extremely dangerous. 

21.  Therefore, for Charge 2, I consider the appropriate starting point to be one of 12 months’ imprisonment.

22.  Mr Wong asked the sentence in Charge 2 to run concurrently with that of Charge 1.  However, as these were separate and distinct acts, I do not see any reason to pass wholly concurrent sentence.

23.  The defendant pleaded guilty and he would get a one-third reduction in sentence for his pleas.  Other than the pleas, I do not see any strong mitigating factor which would warrant any additional reduction in sentence.

24.  For Charge 1, 5 years reduced by one third is 40 months.

25.  For Charge 2, 12 months reduced by one third is 8 months.

26.  These were separate acts and separate offences.  Sentences should in principle run consecutively.  However, applying the totality principle, I order that 5 months of the 8 months’ term for Charge 2 is to run consecutively with the term of 40 months for Charge 1, making a total of 3 years 9 months’ (45 months) imprisonment for Charge 1 and 2.