HKSAR v. HO CHEUK WAI

HCCC 226/2018

[2018] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 226 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to two charges of robbery, contrary to section 10 of the Theft Ordinance, Cap 210. In both charges, he robbed the same 7-Eleven convenience store. Charge 1 is a robbery that took place on 9 November 2017 at a 7-Eleven in 46 Sa Po Road, Kowloon. The defendant admits he entered the shop at 2.15 am, approached the cashier and displayed a 25‑centimetre cutter with 7 to 8 centimetres of its blade exposed. The defendant declared robbery and demanded the cashier take out all the money, which he did. The defendant fled with $7,900.

Charge 2 took place on 8 January 2018, two months after the first robbery. The defendant entered the same 7-Eleven at 5 am and approached the cashier who was working alone at the time. He once again displayed a cutter and pointed it at the cashier. The defendant demanded money and the cashier took out $3,480 and handed it to the defendant, who ran away. The defendant was arrested on 13 February in his own home. He made a full admission under caution to the police, and in short, admitted to robbing the 7-Eleven store twice because he owed a large debt to a money lender. He had borrowed money after a losing gambling streak.

He further explained in his subsequent video-recorded interview that he was afraid his mother would be harassed by the money lender because of his failure to repay his debt in time, so he decided to rob the 7-Eleven. He recognised himself from screenshots of CCTV footage obtained from the store on both occasions. He was identified by both cashiers as the robber who had displayed a cutter. I have taken into account that he fully cooperated with the police after his arrest.

The offence of robbery can attract a life sentence. The offence is committed when a person steals, and immediately before the time of doing so, and in order to do so, uses force on any person, or seeks to put any person in fear of being then and there subject to violence.

The defendant is now 23 years old, educated up to Form 4 level, and when he was arrested he had a clear record. He has worked in various professions, as a chef apprentice, warehouse clerk, and was a full-time delivery worker when he was arrested. He is married, but his wife lives in China and at the time of the offence he was living with his mother. His father passed away when he was in primary school.

I have heard full mitigation put forward on the defendant’s behalf and his best mitigation is his plea of guilty. Ms Yip has said all she can say on behalf of the defendant. I have also had in advance eight mitigation letters which I have read and I have considered their content. The defendant wrote a heartfelt letter of remorse in which he promises to make good use of his time serving his sentence to study so as to better equip himself to find a job when he is released. He makes his promise to give his mother, who has basically raised him single-handedly, a better future.

The defendant has joined church meetings whilst on remand and been inspired by positive messages. He says he is determined to lead a law abiding life from now on. The defendant’s mother has also written a letter explaining their family background. Obviously, she has worked hard to raise the defendant on her own after her husband died in 2006. She describes him as a filial son and gives examples. There are other letters from very close, long-term friends. What they have in common is that they are shocked that the defendant has committed these offences and describe his actions as out of character. He has only broken the law because he was in financial trouble.

It may have been out of character for the defendant with a clear record to commit two serious robberies, and I accept that he was driven by desperation, but these offences were not committed on the spur of the moment. In addition, his debts were mounting because of gambling. These financial problems are self-inflicted. If the defendant has a gambling addiction, I suggest he seek professional help immediately to ensure he does not find himself in this situation again.

The sentencing guideline case for armed robbery comes from the well-known authority of The Queen v Mo Kwong Sang [1981] HKLR 610. In that case, the Court of Appeal set out guidelines for the appropriate starting point to be imposed in armed robbery cases. The court made it clear that those guidelines were applicable to cases where knives and other dangerous weapons were used during the course of the offence. The appropriate sentence in an ordinary case of armed robbery where the defendant was carrying a knife or other dangerous weapon which he displayed to the victim should be in the range of 5 years’ imprisonment.

In that authority, the court discusses other aggravating factors which would increase the sentence. Those discussed and listed there do not apply to these facts. There is another factor which is relevant and that is he has committed two offences of a similar kind, but I will leave that to be considered with the totality principle, and how much of the sentence of the 2nd charge will be served consecutively to the 1st charge.

However, there is an aggravating factor, that the premises were convenience stores, a store which is open 24 hours, often not well staffed in the early hours of the morning and in general can carry large amounts of cash, so deterrent sentences are called for so as to prevent these shops falling prey to attempted robbers. I have been referred to the authority of HKSAR v Lam Hoi, CACC 105/2016, and taking into account HKSAR v Wong Cheung [2011] 5 HKLRD 171, this confirms that is an aggravating factor. I have also had the opportunity of reading the reasons for sentence imposed in HKSAR v Choi Ka Leong & Anor, HCCC 174/2017.

In both counts, these robberies took place in the early hours of the morning and the defendant targeted a sole male employee on duty. The defendant waited for an opportunity to carry out the robbery and then, armed with a paper cutter, approached the vulnerable cashier. I will repeat that the best mitigating factor that can be taken into account is the defendant’s plea of guilty, for which he is entitled to a one-third discount.

To some extent, his clear record is a mitigating factor, but which in the end deserves little if any weight because of the serious nature of the offence and the fact he committed two robberies in the space of two months.

Having considered the facts of the case, the defendant’s plea today, his full cooperation after arrest and mitigation I have heard, I see no reason to depart from the starting point of 5 years as suggested in the Mo Kwong Sang authority. I will add an additional 3 months to reflect the aggravating factor, that the defendant targeted a 24-hour convenience store. Therefore, I will take a starting point of 5 years and 3 months for both charges, and because of the defendant’s plea, I reduce that by one-third, to 3 years and 6 months’ imprisonment.

I will take into account the totality principle and I am satisfied that, after plea, the overall imprisonment term for the two separate robberies under consideration which were committed on different dates, should be one of 3 years and 10 months. I will order that 4 months of Charge 2 be served consecutively to the sentence of Charge 1, to reflect the fact he committed the same offence again. The result is that the defendant is sentenced to a term of 3 years and 10 months imprisonment.