HKSAR v. CHEUNG WAI SHING

DCCC 345/2020

[2020] HKDC 765

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 345 OF 2020

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REASONS FOR SENTENCE

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The charges

1.  The defendant Cheung Wai Shing pleaded guilty to 2 charges:-

Charge 1

Robbery, contrary to section 10 of the Theft Ordinance, Cap 210

Charge 2

Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.

2.  The particulars of Charge 1 stated that the defendant, on 23 February 2020, outside Shun Tak Fraternal Association Tuen Mun Leung Lee Sau Yu Kindergarten, Ground Floor, Ting Hong House, On Ting Estate, Tuen Mun, New Territories, in Hong Kong, robbed Wong Kwai Ho of 1 handbag, 1 wallet, 1 Hong Kong Identity Card, 1 Home Visit Permit, 2 Octopus cards, 4 photos, 1 packet of wet tissues, 1 box of medicine, 1 bottle of hand sanitizer, 1 smartphone with 1 phone case, 1 flask, cash HK$935.9 and some miscellaneous items.  The particulars of Charge 2 stated that the defendant, on the same date and at the same location, assaulted the same victim, thereby occasioning her actual bodily harm.

Summary of facts

3.  The Summary of Facts admitted by the defendant shows that the 2 offences arose from the same incident.  At around 10.35 hours in the morning of 23 February 2020, Madam Wong Kwai Ho (“the victim”), who was 75 years old, was walking alone outside the said Kindergarten.  She was carrying a red handbag containing the properties as particularized in Charge 1 at her forearm at the time.  The defendant approached her from behind and tried to snatch the handbag from her.  She tried to hold on to her properties and struggled with the defendant.  Eventually the defendant managed to overpower the victim and took the handbag away from her.  Then he used his hand to hit on the victim’s right arm, causing her to fall to the ground with her head hitting the ground.  The defendant started to flee and the victim chased after him, shouting for help at the same time.

4.  An off-duty police officer who was nearby noticed the cry by the victim and joined in the chase.  The defendant was subdued after a chase and the victim’s handbag was recovered.  He was arrested by the police officers arriving later at the scene.

5.  The victim was sent to hospital for treatment.  She was found to have sustained a haematoma at the posterior of her scalp and tenderness at her left buttock.  She was discharged on the same day and did not require further follow-up treatment.

Background of the defendant

6.  The defendant is now 26 years old, single.  He received education up to Form 1.  At the time of the offence he was co-habiting with his girlfriend and a daughter aged 5 born out of this relationship.  He worked as a logistic driver and courier.  He was the sole breadwinner supporting the livelihood of his girlfriend and the daughter.  According to Mr Kwan, who appears on behalf of the defendant today, he worked as a construction worker on a casual basis, earning about HK$9,800 per month.

7.  The defendant has 8 previous convictions.  He was first convicted of “Theft” in March 2008.  He was only 14 years old at the time.  In July the same year he was convicted of “Assault occasioning actual bodily harm” and later in the same month “Handling stolen goods”.  He had been given opportunities to rehabilitate himself with Probation Orders being imposed for his early offences.  However, he did not treasure those opportunities given.  In November 2009 he was sent to Detention Centre for breach of Probation Order.  Even worse, he began to become involved in dangerous drugs, and was convicted of “Possession of dangerous drug” on 2 occasions in 2011 and 2012 respectively.  On both occasions he was sent to DATC.  His last conviction came in March 2015 when he was convicted of “Claiming to be a member of triad society” for which a 240 hours CSO was imposed by the court.

Mitigation

8.  In mitigation, Mr. Kwan submitted that after the birth of his daughter in November 2016, the defendant has amended his way of life and settled to be a responsible and law-abiding father.  He worked hard to make ends meet for the family.  Unfortunately, at the time of the offence his work was very unstable, causing him to be in tight financial situation.  Out of greed and momentary impulse, he committed the present offences.  He had no intention to hurt the victim.  He is very remorseful for what he had done.  Mr Kwan submitted mitigation letters written by the defendant, the defendant’s father and the Captain of the Yuen Long District Youth Outreaching Social Work Team of the Hong Kong Christian Service in support.

9.  In relation to the quantum of sentence, Mr Kwan referred me to 2 authorities, HKSAR v LAM Chun Man [2008] 2 HKCLRT 137 and HKSAR v LAM Ka Hung unrep CACC 294/2003.

Sentence

10.  This is a case of Robbery where no weapons are displayed or used.  In R v Yau Kwok-tung [1987] 2 HKLR 782, the CA stated that 4 years’ imprisonment is “at the top end of the tariff” for this kind of offences.  In the 2 cases referred to by Mr Kwan, and the cases cited in those judgments, 4 years was approved by the CA as a proper starting point for unarmed robbery involving more than 1 robber.

11.  The victim in this case is a 75 years old lady.  Preying on such a defenceless elderly lady and applying physical violence in order to rob her of her properties is a very despicable conduct.  The defendant can expect no mercy from this court.

12.  However, taking all mitigating factors into account, in particular the fact that he seemed to have amended himself after the birth of his daughter and that the offence was committed on his own, with no suggestion of any pre-meditation, I am prepared to be as lenient as possible to the defendant.

13.  For Charge 1, I adopt a starting point of 3 years and 6 months.  A full 1/3 discount will be accorded to his timely guilty plea, reducing it to 2 years and 4 months.

14.  For Charge 2, the injuries sustained by the victim were, luckily, not serious.  I adopt a starting point of 12 months and reduce it by 1/3 to 8 months for the guilty plea.  This offence is in fact part and parcel of Charge 1.  The criminality of this offence has already been taken into account when assessing the sentence for Charge 1.  Therefore, I order that the sentence for Charge 2 to be served concurrently with Charge 1.

15.  For the 2 Charges, the defendant is sentenced to 2 years and 4 months’ imprisonment.