|
DCCC 820/2018
[2019] HKDC 766
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 820 OF 2018
---------------------------
----------------------------
| Present: |
Mr Chan King Hong King, Public Prosecutor of the
Department of Justice, for HKSAR |
|
Mrs Daley Mak Hing Fun Angel, instructed by David Hui &
Co, assigned by the Director of Legal Aid, for the defendant |
-----------------------------------------
REASONS FOR SENTENCE
-----------------------------------------
1. The defendant was convicted of a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210, on his own plea and agreement to the facts.
Facts
2. PW1 is a sex worker who resides at a sub-divided room in Yuen Long (“the room”).
3. In the evening of 29 April, the defendant received sexual services from PW1 at the room. Afterwards, at around 10 pm, PW1 went for a shower. When PW1 came out from the shower, she saw the defendant getting dressed but also saw that her handbag opened. The defendant took his clothes and ran out of the room. PW1 gave chase and intercepted the defendant before he could escape.
4. Suddenly, the defendant took out a cutter and placed it close to PW1’s neck. PW1 did not know if there was the cutter blade inside the cutter. The cutter was about 15 cm long. PW1 was very scared and said she needed the money to pay for her rent. The defendant then put away the cutter into his right trouser pocket and brought PW1 back into the room.
5. Upon returning to the room, the defendant returned a coin purse to PW1. This coin purse belonged to PW1 and was originally in her handbag. PW1 checked her handbag and found that $560 cash was still missing. The defendant returned $440 cash to PW1 and also gave an ATM card and his contact number to PW1 claiming that he would return the remaining amount the following day. He then left with $120 cash as a result.
6. The case was reported. The ATM card was seized by the police and was found to be in the name of the defendant’s deceased mother.
7. Eight days later on 6 May 2018, the defendant was arrested at Lok Ma Chau control point. In a subsequent video-recorded interview, he admitted under caution that:-
(a) In the evening of 29 April 2018, he looked for a sex worker because he wanted to steal from them as he was unemployed and was in need of money. He knew that they would take a shower after sexual intercourse so that he could steal from them when they went for a shower.
(b) The defendant and PW1 agreed to have sexual intercourse for $300. The defendant did not have any money on him at the time.
(c) Afterwards, when PW1 was taking a shower, the defendant took about $400 to $500 cash and a coin purse from PW1’s handbag.
(d) When PW1 came out, PW1 found that the money in her handbag was missing. He tried to flee but PW1 caught up with him and grabbed his hand. He then used his hand to cover PW1’s mouth to stop PW1 from screaming. While covering PW1’s mouth, he took out a cutter from his pocket. Afterwards, he put away the cutter and continued to cover her mouth as he took her back into the room. He returned the coin purse and some cash to PW1 but kept $120. He left his phone number and ATM card to PW1 as a promise to repay her.
(e) The cutter did not have a blade. He only wanted to scare her and to keep her quiet. He found it on the streets in Yuen Long at around 6 pm on the offence date. He had taken the cutter back to his residence in Mainland China and left it there.
(f) The ATM card belonged to his deceased mother.
(g) He spent $120 cash on transportation to his residence in Mainland China the following day.
Criminal record
8. The defendant has a clear record in Hong Kong.
Mitigation
9. The defendant is a man of clear record.
10. He is aged 36. He was born in the Mainland and came to Hong Kong in mid- year 2000.
11. He was educated up to Form 3. He worked in various trades and at the time of arrest he was unemployed.
12. He got married in year 2015. His wife is a saleslady in the Mainland. His father is aged 84 and had rectal cancer several years back and is now living with his 26-year-old sister in Tin Shui Wai. His mother died in the year 2016.
13. It was said that the defendant committed the offence out of financial stress, matrimonial dispute as well as monetary greed. He is now deeply remorseful as to what he has done and is willing to accept all the responsibility. He has cooperated with the police at the first available opportunity when arrested and is willing to compensate the victim for the loss that she suffered.
14. It is also said that the case has been dragged on for almost a year, the defendant and his family suffered a lot of stress as a result. It is said also that the victim was not physically harmed or abused, neither was she tied up.
15. Further, it was submitted that the defendant had picked up the cutter from the street before the incident and that there was actually no blade in the cutter.
16. Defence counsel submitted various authorities to this court including Mo Kwong Sang v The Queen [1981] HKLR 610, HKSAR v Lam Hing Kai [2010] HKEC 2968, HKSAR v Liao Jian [2010] HKEC 2373, HKSAR v Tsoi Hung Bun [2016] HKEC 1809, HKSAR v Tam Kwok Keung [2011] 1 HKLRD 141.
17. It is also said that after the incident the defendant took the cutter back to his home in the Mainland. It was submitted further that although the cutter was shown to the victim, the blade was never shown and the victim was not hurt.
18. Mitigation letters from the defendant, his father and his neighbour were presented to this court for consideration. These letters all say that the defendant used to be a kind and polite person, that he is deeply remorseful and wants to turn a new leaf, they asked this court for a lenient sentence. The aged father blamed himself for failing to educate the defendant properly.
Discussion
19. Any person who commits robbery shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for life.
20. The defendant is a man of clear record.
21. This is a case of armed robbery as the defendant admitted taking out a 15 cm long cutter and placing it close to the victim’s neck. In the video-recorded interview, the defendant also admitted using his hand to cover the mouth of the victim to stop her from screaming at the same time. Although it was said that the blade was not extended as there was no blade, the fear that the victim was put in would be the same as if there was a blade.
22. This court noted that the actual monetary loss to the victim was minimal, only $120, which the defendant was willing to compensate. However, it is clear that the defendant had planned the robbery and had also exploited the victim by having sex with her first, not intended or be able to pay and rob her afterwards.
23. In the case of Mo Kwong Sang, CACC 359/1981, it was said that in imposing sentence, little account should be given to the previously clear record of a defendant who take part in an armed robbery.
24. It is said that:-
“The appropriate sentence in an ordinary case of armed robbery where the accused carry a knife or other dangerous weapon (excluding firearms) which he displayed to his victim should be 5 years’ imprisonment.”
25. It is said that if the robbery involves physical violence,
including tying the victim up, the sentence would be further enhanced.
26. In our case here, the defendant placed his hand over the mouth of the victim. The cutter was placed very near to her neck and the victim was later brought back to the room. The fear caused to the victim during the episode must be overwhelming. It matters not that the blade was not extended or could not be extended as there was no blade as claimed. So far as the victim was concerned, the threat was there and placing the cutter near her neck and covering her mouth with his hand must have caused her great fear.
27. The victim is a prostitute operating on a one-woman brothel basis. The defendant had on his own admission planned to pick on a vulnerable prostitute. The case was premeditated and he had exploited her by, as said earlier, having sex without paying before the robbery. This no doubt constituted an aggravating factor.
28. The Court of Appeal in the case of HKSAR v Cheng Fuk Wa, CACC 442/2005 said that a deterrent sentence must be imposed to protect the vulnerable victim. Picking a prostitute as a victim and the use of violence justifies the sentencing starting point of 5 years enhanced to 5½ years, even considering him a man of clear record.
29. This court has considered all mitigations, submissions and letters advanced and is of the view that the most valid mitigating ground is one of his timely plea of which he is entitled to a full one-third sentencing discount. In the circumstances, the defendant is sentenced to 3 years and 8 months’ imprisonment for this charge.
|