HKSAR v. ZHOU ZEXIN

DCCC 789/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 789 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to robbery, contrary to section 10 of the Theft Ordinance.

2.  The facts are that on 28 May 2015 the defendant robbed a 25-year-old female of RMB400 and HK$200. The victim was walking by herself at 10 pm on 28 May along a subway outside the Hong Kong Heritage Museum, Sha Tin.  Suddenly, the defendant wearing a surgical mask on his face and displaying a cutter appeared before her and declared robbery.  The facts are that she was so scared she tried to run but fell to the ground.  If that was not frightening enough, the defendant then produced a syringe with a blood-like substance in it and told her not to shout, the syringe had AIDS in it.  This is a threat to inject her with tainted blood, as he states, infected with AIDS.

3.  The victim gave the defendant the RMB and Hong Kong dollars.  He ran away.  A passer-by helped the victim, having seen the defendant running away, and the police were called.  

4.  The defendant was caught within a few hours in the Sha Tin area and admitted the offence under caution.  The police recovered the money, the mask, as well as a needle cap found at the scene.  Upon forensic examination the cap had bloodstains that could have originated from the defendant.

5.  The defendant is not a man with a clear record.  He has four previous convictions.  He has two immigration convictions dating back to 2003, and recently in January 2015, he was convicted twice of shoplifting and was fined.  There are no convictions involving robbery or violence.

6.  I have two letters of mitigation this morning, one from the defendant’s wife and another from his mother.  I have taken into account their contents and their requests for leniency.  I have heard full mitigation.  The defendant is 37 years old and was married earlier this year.  However, he and his wife already have a three-year-old son. 

7.  I have been told the defendant, in fact, has been a drug addict for many years.  However, when he was granted a one‑way permit to Hong Kong, in either 2011 or 2012, he quit dangerous drugs.  He relapsed and dabbled in drugs again earlier this year due to stress.  Stress came from work issues and emotional problems. 

8.  At the time of the offence the defendant was working as a driver earning 15 to 16 thousand dollars a month.  He not only had financial responsibility to his wife and son, he had to financially support his mother also living in Hong Kong.

9.  For mitigation, I have been told that on the night of the offence the defendant argued with his wife over financial issues.  This led to him taking heroin and zopiclone at about 8 pm. He then went home and slept for two hours.  After he awoke he went out again. He lives in the Sha Tin area.  He did not intend to go out to rob anyone. However, when he saw the victim in the subway alone, on the spur of the moment he decided to rob her.

10.  I find this is very hard to believe.  On the defendant he had a cutter, a syringe with blood in it and a surgical mask.  I would say he was ready to rob.  I do not accept that the cutter in his possession was just a tool of a trade of a previous job prior to his present job.  In any event, whether premeditated or on the spur of the moment this would not make a significant difference to sentence because the offence is serious, nor will the submission that he told the victim to keep her coin bag to get home.

11.  There is a guideline that is still followed for robbery offences, and that is  Mo Kwong Sang v The Queen [1981] HKLR 610.  The Court of Appeal in that authority said,

“In a case of robbery where a knife or other dangerous weapons are displayed to the victim, the appropriate sentence shall be 5 years’ imprisonment. The sentence shall be increased if there are aggravating factors such as invasion of domestic premises during the night, the presence of more than one perpetrator, threats to the victim, ill-treatment of elderly people and children, or a multiplicity of offences of a similar kind. The fact that the offender had a previous clear record should be given little account.”

12.  The facts here fall squarely within this guideline.  In fact, I find that there is definitely an aggravating factor.   Not only did the defendant display a cutter, he threatened the victim with a syringe of blood and threatening to infect her with AIDS if she screamed.  The defendant’s best mitigation today is his plea of guilty.

13.  I take into account all mitigation put forward, the facts of this case, his plea, and the aggravating factor I have identified.  After considering all those factors, I take a starting point of 5 years and 3 months’ imprisonment.  There is an extra 3 months from the normal starting point used with such facts to reflect the aggravating factor.  The defendant is entitled to a discount of one-third from this starting point for his plea.  After that discount is applied, the defendant for this charge is sentenced to 3 years and 6 months’ imprisonment.