HKSAR v. LO YAM CHUNG AND OTHERS

DCCC540/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 540 OF 2011

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Reasons for Sentence

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1.  The defendants, who appeared as D1, D2 and D5, each pleaded guilty to a joint offence of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210. D1, D4 and D6 pleaded guilty to a joint offence of attempted robbery, contrary to the same section, and section 159G of the Crimes Ordinance, Cap. 200. D1, D3, D4, D5 and D6 each pleaded guilty to an offence of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, and all defendants pleaded guilty to an offence of theft contrary to the same section.

2.  Each defendant admitted the brief facts to which he had pleaded guilty, and I convicted them.  D2 denied the 3rd charge, that of theft, and I ordered that charge to remain on file, not to be proceeded with without leave of this court or the Court of Appeal.  After admitting the brief facts D2, D3 and D5 were each remitted to the Juvenile Court at Kowloon City for sentence. 

Facts

3.  I deal, first of all, with Charge 1, which applies to D1, D2 and D5.  At about 8 pm, on 19 February of this year, Chiu Ka-chun, the victim, reached Rose House, Ma Tau Wai Estate, To Kwa Wan, where he saw four males approaching.  One known as “Fat Chung” asked him who he followed and someone punched him.  “Fat Chung” then punched him once on the forehead and he fell to the ground.  He was then assaulted by the group. During the assault he felt someone insert his hand into his right trousers pocket and take away his mobile phone which was valued at $200, which is Exhibit 1.  The group then fled.  At a subsequent ID parade the victim identified D1, D2 and D5 as the males who robbed him. 

4.  The 2nd charge involved D1, D4 and D6.  At about 2.20 pm, on 20 February last, Wong King-lung, the victim, was opening the main entrance gate of 69 Sa Po Road, Kowloon City.  Suddenly a male approached him from behind and scolded him with foul language.  The male then grabbed his neck.  Three other males then appeared and tried to snatch his phone from his hand.  The victim shouted for help.  One male punched his face.  Then the four fled.  The victim sustained bruises and tenderness to his right cheek.  The victim failed to identify anyone at an ID parade. 

5.  Charge 3 involved D1 and D3 to 6, and Charge 4 all defendants.  At about 3.30 pm, on 20 February last, Lam Wing-kee, victim no. 3, and Lee Shum-yin, victim no. 4, were waiting for friends near a car park outside Hoi Sham Park, Chi Kaing Street, To Kwa Wan.  Six males appeared and asked to whom they belonged to.  They ignored them.  Two of the males snatched mobile phones, Exhibit 2 and Exhibit 3, valued at $2,598 in total, from their hands and fled.  In subsequent identity parades victim 3 identified D1, D3, D4 and D5; victim 4, D2, D3, D4, D5 and D6.  Exhibits 1 to 3 were retrieved from different mobile phone shops in Kowloon.  D1 admitted all charges in receiving a total of a $130 from sale of the phones.  D4 also admitted committing the offences and receiving $240.  D6 admitted the charges and receiving $100.  He claimed his role was to act as a lookout.

6.  D1 and D6 were each of clear records, whilst D4 admitted to two convictions subsequent to the commission of the presence offence.  D1, D4 and D6 were each remanded in custody for probation officer’s background reports.  Those reports are before the court and have been considered and understood by me.  I am told that you agree with the contents of those reports. 

7.  Additionally I have taken into consideration the letters provided for each of you. 

8.  Miss Szeto, first of all, entered mitigation on behalf of you, D1.  She told me you had admitted to all and pleaded guilty to all four offences, namely one robbery, one attempted robbery and two thefts arising from three incidents.  The facts were as outlined.  She told me that you are 17 years of age, single, and presently unemployed.  You had worked in a hair salon as an assistant from 2008 to 2010.  You had known D2 and D6 for about five years.  You have been in custody since 2 June of this year and were very remorseful.  You asked for a chance.

9.  She pointed out in the robbery that a weapon was used and there had been very little force employed.  The goods involved had only been worth $200, and your share was $30.  In Charges 3 and 4 your role had been to act as a lookout, for which you received a $100.  To demonstrate your remorse you had made full restitution to the victims and cooperated fully with the police after arrest.  She said that you lived with your father of 63 and two younger sisters.  Your mother lived separately, and the family relationships were poor. 

10.  Miss Szeto, very helpfully, provided me with a file of sentencing tariffs.  I will not go through those sentencing guidelines.  In short, she urged me to accept the starting point of about 4 years' imprisonment for robbery, that the charges on 1 and 2 should be either concurrent or partly concurrent, that Charges 3 and 4 should attract starting points of approximately 6 months, and they should be run concurrently with each other and partly concurrent with Charges 1 and 2.

11.  Mr Yip then entered mitigation first of all on your behalf, D4.  He told me that you came to Hong Kong in 1999, the same year that your father died of a heart attack.  You grew up in a single parent family and you were educated to Form 3.  You had been the subject of a care and protection order, which had expired in January 2009.  At the time of the commission of this offence you were of clear record, but subsequently you had been sentenced to DATC, and in fact in July of this year for possession of dangerous drugs.  He pointed out that no weapon was used and there was minimal violence.  You have paid compensation voluntarily to the victims of Charges 3 and 4.  He said at the time of the commission of the offences you were under the influence of dangerous drugs. 

12.  D6, he told me you are 19 years of age and of clear record.  You came to Hong Kong in 1996.  Your parents divorced in 2004. Your father is 62 and mother 42.  Your mother had worked as a night cleaner so there had been poor supervision of you.  Your role in these offences was to act as a lookout.  You too had voluntarily repaid the compensation.  He referred me to the case of HKSAR v Ting Chu & Anor, Cr. App. No. 174/2003. There a starting point of 4 years was approved for an armed robbery.  As you are of relatively young age, he asked me to adopt a lower starting point than that. 

Sentences

13.  Robbery is always a serious offence, as is attempted robbery.  I note that in both these cases no weapon was used and minimal violence was applied.  The injuries to the victims were thankfully minor.  The phone taken in the robbery was worth only $200.  Of course nothing was taken in the 2nd charge.  Charges 3 and 4 involved snatching of mobile phones. It is very much in your favour that you have all repaid the compensation to the victims.  I note you are relatively young, D1, 17, D4, 16 and D6, 19.  At the time of the commission of the offences you were all of clear records. 

14.  There are two aggravating features in this case.  The first is that the charges involved a gang, and secondly there is certainly a degree of agreement between you and a degree of planning.  From brief facts it appears you were all cooperative with the police and have now pleaded guilty. 

15.  I have taken into account the sentencing guidelines helpfully provided by Miss Szeto and Mr Yip.  The sentences will be as follows:

1st Defendant

16.  D1, first of all, on the 1st offence I take as a starting point 3½ years - that is 42 months - reduced to 28 months.  On the 2nd charge, 3 years 3 months, that is 39 months, reduced to 26 months for a plea of guilty.  Four months will be served consecutively and 22 months will be served concurrently.  Charges 3 and 4 will be a starting point of 9 months' imprisonment, reduced to 6 on each. They will be served concurrently with each other, but with the periods on 1 and 2 they will be served 3 months concurrent and 3 months consecutively.  That is a total of 35 months’ imprisonment.  I have applied the totality principle.

4th Defendant

17.  D4, on Charge 2 I take a starting point of 3 years and 3 months.  That is 39 months, reduced to 26 months.  Charges 3 and 4, I take starting points of 9 months in each case, reduced to 6 months for your pleas of guilty.  They will be served concurrent with each other, and three months consecutive and 3 months concurrent to the periods on Charge 2. That is a total of 29 months’ imprisonment.

6th Defendant

18.  D6, I impose exactly the same penalties on you. Charge 2, starting point of 3 years 3 months, reduced to 26 months. Charges 3 and 4, starting point of 9 months on each, reduced to 6 months, to be served concurrently to each other, 3 months consecutive and 3 months concurrent to Charge 2, a total of 29 months’ imprisonment.