HKSAR v. CHEUK PANG

DCCC790/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 790 OF 2010

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Reasons for Sentence

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1.  I convicted you after trial, defendant, of two charges. One of those charges was of indecent assault on a woman, and the other charge was that of robbery of one mobile phone, both on the same woman victim. Those offences being contrary to section 122(1) of the Crimes Ordinance, Cap.200, and section 10 of the Theft Ordinance, Cap.210, respectively. Those offences occurred on 9 May 2010.

2.  I gave full reasons for my verdict this morning and I shall summarise the facts I found in my verdict.

3.  I found that some time shortly after 6 am on 9 May 2010 Madam Wong, the victim in both charges, hailed your taxi in Hollywood Road, which you were the taxi driver, to go to the junction of Staunton and Hill Street.  As soon as she got into the taxi she lay down on the rear seat. 

4.  During the journey to Staunton Street you indecently assaulted her by stretching your arm from the driver’s seat to the rear seat and touched Madam Wong’s inner thigh near to her private parts, under her buttock, for one to two seconds.  At that time the taxi was stationary.

5.  A very short time later your taxi had stopped in Staunton Street.  After about one minute of it remaining stationary with both you and Madam Wong in the cab, you alighted from the taxi and walked around to the left rear passenger door.  I found that you reached into the rear passenger seat and snatched the telephone from Madam Wong while she was in the taxi talking on the phone, in so doing pulled off her earring and caused her ear to bleed.  You then dragged her out of the taxi and attempted to escape with her telephone by returning to the driver’s seat.  However, PW1 jumped back into the taxi to stop you from driving off with her phone.  Eventually, PW1 voluntarily exited the taxi when she saw you walk back round to the rear passenger door as she was frightened.

6.  Once PW1 had alighted from the taxi, you immediately went back to the driver’s seat, commenced buckling up your seat belt and intended to drive off with Madam Wong’s telephone.

7.  Fortunately, there were two passers-by who observed part of these events.  One was an off-duty police officer and the other was a civilian security guard.  The off-duty officer had observed you pulling PW1 out of the taxi and heard Madam Wong cry out to you words to the effect, “Why did you snatch my phone?” and “Give me back my phone.”

8.  The off-duty officer saw you walk from nearby to Madam Wong, ignoring her cries to return her phone, to the driver’s seat of the taxi.  Reasonably and logically thinking a crime had been committed, the off-duty officer immediately approached your taxi at the driver’s seat and saw you buckling up your seat belt with Madam Wong’s telephone in your hand. Believing that you were going to drive off, the officer pressed against the door and pulled out the ignition keys from the taxi.

9.  The security guard, PW3, was walking near to Staunton Street and he heard the cries of Madam Wong, also to the words to the effect, “Why did you snatch my phone?” and “Give me back my phone.”  He could not see Madam Wong but saw you walking from the left side of the taxi to the driver’s seat and board the taxi.  He immediately walked up towards your taxi and also saw you in the driver’s seat holding a phone and buckling up your seat belt.  He too believed that you were about to drive away.

10.  The off-duty officer made inquiries of Madam Wong at the scene and she told him effectively that you had indecently assaulted her by touching her thigh, that she believed you had taken photos of her, and that you had robbed her of her phone.  The off-duty officer then checked your mobile phone and found that you had taken three photographs of her whilst she was inside your taxi.

11.  Whilst Madam Wong was in the taxi and had not yet arrived at Staunton Street she had already dialled her friend, Mr Edmund Lee, complaining to him that you had indecently assaulted her.  At that time she was crying profusely.

12.  I rejected your defence case that you had taken photographs of her because you were afraid she was not going to pay the fare and those photographs were to identify her to the police.  I found that the photos you took were useless or not helpful at all for any identification and found more particularly that one of the photographs was not even taken of her face but was a close-up of her midriff and thigh.

13.  I rejected your case that you had no intention to permanently deprive PW1 of her telephone.

14.  Defendant, you are 50 years of age and have a previous conviction for buying dutiable goods to which you were fined $2,000 in 1999, and that conviction is regarded as spent.

15.  Mr Egan, your counsel, has made very full and thorough mitigation on your behalf, and he has also been assisted by those instructing him - Mr Andrew Lam - in part of the mitigation.

16.  You have been a taxi driver for 25 to 26 years and have not had any similar convictions.  Contrarily, you have in fact returned property found in your taxi.  Submitted to me are two certificates showing that you have done so. The first was on 12 August 2009, to which you returned many items such as bankcards, Octopus cards, identity cards to the police, and on another occasion, very recently, on 17 November this year, you returned property which was a laptop computer, to the Taxi Union Lost Report Centre.

17.  You are married and have a son and a daughter aged 16 and 13.

18.  I have received many letters written on your behalf from your family as well as your business associates and a District Board member.  They have all highlighted and stressed to me that you are a very good husband, father and friend.  You are very hardworking and are an honest man.  You are the sole breadwinner of your family.  Your wife has health issues concerning her heart and her eyes, and your mother is legally blind.  It is urged upon me to pass as lenient a sentence upon you as is possible as when you are sentenced to prison your family will suffer severe financial hardship.  In essence, your family depends on you for their livelihood and by you being imprisoned, they will be at a loss.

19.  Mr Egan has made very strong and persuasive mitigation on your behalf.  He accepts that young ladies are entitled not to be indecently assaulted when they travel in a taxi, but he submits that the indecent assault was certainly not of the worst form and equates it to one of the usual type of case of indecent assaults the courts come across in MTR-type cases of general touching.

20.  Mr Egan submits in respect of the robbery offence that this was not equivalent to your usual robbery but was more of a theft by snatching.  He submits that PW1, the victim, was talking on the phone and just as a result of the defendant snatching the phone her earring came off and there was no intended injury to Madam Wong.  He submits there was no actual force used, it is just that the nature of the defendant snatching the phone caused the earring to be dislodged.

21.  He submits that you never intended on that morning to go on a crime spree and that it was not premeditated.

22.  Defendant, as I mentioned to Mr Egan during his mitigation, I accept that this was not a premeditated offence, that is as regards either offences.  These offences were committed as you took advantage of the situation to which you found PW1 was in.  It was, as I accept, opportunistic crimes.

23.  The public is entitled to assume that when they use public transport that they will be safe and will not be victims of crimes by taxi drivers or the like.   Hong Kong is known for its safeness of the people or public travelling or roaming the streets in Hong Kong no matter at whatever time.  You have demonstrated that this may not be so.  The public, particularly single women wearing short skirts, after a night out in the town, are entitled to expect and trust taxi drivers will not commit offences on them and will consider the safety of them as their passengers. 

24.  A message must be sent to anyone, particularly drivers of public transport, that if you are going to commit offences against the passengers, the courts will deal with you severely.

25.  The court must have regard to the public’s well-being and pass deterrent sentences such that drivers like yourself will consider not committing these types of offences.

26.  I have given anxious consideration to the appropriate term of imprisonment to impose, Mr Egan accepting that the correct sentence should be one of an immediate imprisonment.

27.  In the usual run-of-the-mill cases of robbery where violence is used and property is snatched the range of sentence is that of about 3 years to 4 years’ imprisonment. 

28.  I am very conscious that the defendant in this case is convicted of robbery.  Mr Egan has urged me to consider, however, that this case on its facts does not fall within the usual robbery facts and is akin to a theft by snatching and asks me to impose a more lenient sentence of imprisonment.

29.  Mr Egan was unable to provide me with any case authorities.  However, I found two authorities, namely HKSAR v Lee Chi Man, CACC387/2006, and HKSAR v Chan Sing Leung, CACC48/2006, both Court of Appeal decisions which deal with theft by snatching facts.  Mr Egan, having read these two cases now that I have shown them to him, accepts that the range of theft by snatching in these circumstances which equates with the present case should be a term of between 15 months and 2 years’ imprisonment for the robbery charge.

30.  I accept that in this case that Madam Wong did not suffer too serious injuries but there was bleeding on her ear as a result of the phone being snatched from her hand when she was talking on the phone.  I accept that the pulling off of the earring was probably unintended and I accept that this was an opportunistic crime committed by the defendant taking advantage of the circumstances of the situation.  I accept that the defendant is otherwise a man of good character and has never been in trouble for 50 years except for the spent conviction and has been a taxi driver for 25 to 26 years.

31.  Taking into account all these factors, I consider that for the robbery charge a sentence of 15 months’ imprisonment is appropriate.

32.  Defendant, as for the indecent assault charge, I accept that was certainly not the worst kind of its type; it was a touching of one to two seconds the inner part of her thigh near to her private parts, and taking guidance from the MTR-type cases and sentences, I think an appropriate sentence for the defendant is one of 14 days’ imprisonment.

33.  The two offences were separate and distinct offences although committed fairly close together to each other.  I do consider a partly consecutive sentence to be appropriate. 

34.  Taking into account the principle of totality, I order that 7 days of Charge 1 is to be served consecutively to Charge 2, making, defendant, your total term of imprisonment to which you will serve as 15 months and 7 days’ imprisonment.