HKSAR v. CHAN SAN YIU

DCCC276/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.276 OF 2011

_____________

Reasons for Sentence

1. These Reasons for Sentence deal only with D2.

2. D2 pleaded guilty to one charge of robbery, one charge of assault with intent to rob, one charge of theft and one charge offailing to surrender to custody.

Facts

Charge 1

3. Charge 1 took place on 30^th December 2010. At around 1:15pm, D1 and D2 approached a 15 year old boy in an internet café and D1 told the boy that he was there to collect protection fees, that he should quickly give him the money or D1 will hit him with a torch that he was holding. D1 said that while swinging an 8 inches long torch.

4. The boy was scared and took out his wallet with $460 cash inside. D1 took 4 $100 bank notes from the wallet and told the boy that he only wanted $360. D1 gave a change of $40 to the boy and put the 4 $100 notes into a red packet. D1 told the boy to look for D1 should he be bullied in future. D2 stood beside D1 throughout the incident.

5.  After D1 and D2 left the internet café, the matter was reported to the Police who arrived at the scene shortly to investigate. During the investigation, D1 returned to the café and was identified by the boy. D1 was arrested and the torch, a $500 bank not, 4 $100 bank notes and 1 $50 bank note was found on him. D1 was arrested. He remained silent under caution. D1 was subsequently granted Police bail.

Charge 2

6.  Charge 2 took place on 4^th February 2011, 36 days after charge 1 and whilst D1 was on bail.

7.  At around 9:45pm, 20 year old male victim Mr. Wong was walking along the street in Mongkok when he was suddenly pressed down on to the ground and punched by someone for about 10 seconds. Mr. Wong managed to look up and saw D1 and D2. There was no one else around. One of the 2 said to Mr. Wong to surrender his money and that they did not want to cause trouble. Mr. Wong replied that he did not had any money. D1 and D2 punched him for a few more times. One of the 2 then said to Mr. Wong to show him his wallet, but told him to forget it if he only had $100 odd. Mr. Wong then took out his mobile phone to call the Police. D1 and D2 fled.

8.  Mr. Wong was later taken to the hospital and was found to be suffering from tenderness on his left chest wall and left arm and redness on his left thigh.

Charge 3

9.  20 hours later, at around 5:45pm on 5^th February, while 28 year old Ms. Lee was walking alone on the street in Mongkok, D1 suddenly snatched her handbag from behind. D1 and D2 ran and Ms. Lee gave chase while calling for help. During the case, Ms. Lee found her handbag abandoned in an alley. Ms. Lee continued the chase and shortly found D1 and D2 subdued by passers-by. D1 and D2 were arrested at around 6:10pm. D1 remained silent under caution.

10.  The handle of the handbag was torn in the course of the snatching but nothing was missing from it when it was recovered.

Charge 4

11.  Court bail was granted to D2 on 25^th March 2011. D2 was appointed by a court to surrender to custody in the District Court at 09:30am on 15^th April 2011 for mention. D2 failed to surrender on the day without reasonable excuse. An arrest warrant was issued against D2.

12.  On 13^th May 2011, D2 was located in an internet café and was arrested by the Police. When questioned under caution why he was absent at the court hearing on 15^th April, D2 explained that he was absent because he had forgotten to attend.

13.  In his subsequent cautioned video recorded interview, D2 admitted that he and D1 deciced to borrow money from the victim in charge 1 and that he took $200 out of the $360 that D1 had taken from the victim.

14.  In relation to charge 2, D2 claimed that he misidentified the victim as someone else when he decided to punch the victim. He walked away after realizing he had made a mistake.

15.  In relation to charge 3, D2 said he and D1 had no money and so decided to rob someone and share the take. After identifying the victim as an suitable target, they followed her around the street corner and then D1 rushed to snatch the handbag. They together fled with the handbag. After running out the alley, D2 felt he wasn’t going to make good his escape and so he stopped running and was intercepted by the passers-by.

Previous convictions

16.  The defendant was convicted on 2 occasions for 4 charges of theft, last sentence to Detention Centre on 17^th August 2011 for theft.

Mitigation

17.  D2 has just turned 19 at the time of sentence. Since D2 was recently sentenced to the Detention Centre at the Kowloon City Magistracy at the suggestion of Mr. Cheung, this court called for the file of that case to read the prepared reports.

18.  What one can learn from the reports is that it was the opinion of the probation officer that the defendant has shown little or no remorse towards his wrongdoings, but his mother is still supportive and is even willing to bear the sight of her son in jail if that is what is required to get some sense into him.

19.  Mr. Cheung submitted that since the defendant’s present remand, he realized his previous misdeeds and he has seen remorse in this young man.

Sentence

20.  Similar to what I had found in the sentencing of D1, I find that D2, as a 19 year old, is not in the category of extreme youth and as such his age itself is not a significant mitigating factor. To be fair, Mr. Cheung never relied on D2’s age as such.

Charge 1: Robbery

21.  In relation to charge 1, the robbery is not the worst of its kind and the weapon involved was a torch light. The defendant however committed the offence with another, D1.

22.  In the case of Mo Kwong Sang, the Court of Appeal laid down general guidelines for sentencing armed robbery cases:

a. “We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

b. 13. If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

c. 14. If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

d. 15. These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

e. 16. These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

f. 17. Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

23.  In our present case, the defendant committed charge 1 jointly with another person, although it was D1 who threatened the victim, D2 was obviously in it together, as confirmed in his own cautioned video recorded interview.

24.  I think that bearing in mind the aggravating factors and then balancing them with the relatively young age of D2, a starting point of 4 years and 6 months’ imprisonment is appropriate.

25.  I will grant the defendant the full one third discount in recognition of his guilty plea and sentence him to 36 months’ imprisonment on charge 1.

Charge 2: Assault with intent to rob

26.  Assault with intent to rob carries the same maximum punishment as robbery, which is that of life imprisonment.

27.  Again, the assault was committed by the defendant jointly with D1 on the victim, which is an aggravating factor.

28.  I think that bearing in mind the aggravating factor and then balancing it with the relatively young age of the defendant, a starting point of 4 years and 6 months’ imprisonment is appropriate.

29.  I will grant the defendant the full one third discount in recognition of his guilty plea and sentence him to 36 months’ imprisonment on charge 2.

Charge 3: Theft

30.  The sentence guidelines for snatching is that of between 12-15 months’ imprisonment.

31.  I will adopt a starting point of 15 months’ imprisonment, reducing it by 1/3 to 10 months’ imprisonment in recognition of the defendant’s plea of guilty.

Charge 4: Failing to surrender to custody

32.  I was very helpfully referred to the case of HKSAR v Wong Chi Hung, CACC 300/2010 by Ms. Ng for the prosecution. There the applicant failed to surrender to custody after bail was granted, and he was arrested after about one month into his absconding. The learned trial judge adopted a starting point of 3 months’ imprisonment and ordered the term to be served consecutively to the rest of his sentence. His decision was upheld on appeal.

33.  I find that a 3 months’ imprisonment starting point is also appropriate in our present case, and I will grant the defendant the full one-third discount for his guilty plea. D2 is therefore sentenced to 2 months’ imprisonment for charge 4.

Totality

34.  I order that 4 months of charge 2 and 2 months of charge 3 be served consecutively to the sentence in charge 1, the balance to be served concurrently. The sentence for charge 4 to be served consecutively to the rest of the sentence.

35.  D2 is therefore sentenced to a total of 36+4+2+2=44 months’ imprisonment. I order that the Detention Centre order previously imposed on the defendant be discharged.