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DCCC 179/2019
[2019] HKDC 1046
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 179 OF 2019
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| Present: |
Mr George Chu, counsel on fiat, for HKSAR |
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Mr Ching King Tat, of Hui & Lam LLP, assigned by the Director of Legal Aid, for the defendant |
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REASONS FOR SENTENCE
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1. The defendant is convicted of a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210, on his own plea and agreement to amended Summary of Facts.
Facts
2. On 11 January 2019 at about 11.40 pm, when Ms Choi got off a bus and was walking alone with a bag on her right shoulder along Sham Mong Road in Tai Kok Tsui.
3. Her handbag was pulled by the defendant who was riding on a bicycle. The handbag caught Ms Choi’s arm and she lost balance and was pulled forward together with her handbag for about 5 metres. Both the defendant and Ms Choi fell to the ground.
4. At this juncture, Ms Choi shouted “Robbery! Help” and caught the attention of a passer-by. Ms Choi was later seen standing up whilst defendant ran away.
5. Due to the incident, Ms Choi sustained abrasions on her shoulder, wrists and foot. On the other hand, she has suffered no financial loss as defendant left her handbag at the scene.
6. Later, defendant was arrested and under caution, he admitted having snatched Ms Choi’s handbag.
7. In the video-recorded interview that followed, under caution, defendant admitted committing the offence as he said he owed his friends money. He said that at the material time, he saw Ms Choi walking alone with no pedestrians nearby. He therefore grabbed the strap of Ms Choi’s handbag from behind while he was riding a bicycle. The handbag caught Ms Choi’s arm and they both fell on the ground. He pulled the handbag and successfully snatched it from Ms Choi. He then ran away with the handbag. However, he had a sudden change of heart after a few steps as he saw Ms Choi on the ground crying, and he therefore left the handbag behind and ran away.
Criminal record
8. Defendant has two previous convictions, none similar. On 28 May 2018, he was sentenced to 2 weeks’ imprisonment, suspended for 15 months, for possessing articles with intent to destroy or damage property under section 62 of the Crimes Ordinance, Cap 200.
Mitigation
9. Defendant is aged 30. He was born in the Mainland and he came to Hong Kong in the year 2002. He received education in Hong Kong up to Secondary 3.
10. Defendant was married and his wife lives in the Mainland. Defendant lives with his parents at Tai Kok Tsui. He also has a brother.
11. At the time of the offence, the defendant is a driver and he earns about $20,000 per month, out of which he gave RMB4,000 per month to his wife as living expenses.
12. It was submitted by defence counsel that the defendant owed debts to his friends and he was threatened that if he did not repay, they would post notices demanding payment everywhere. He was therefore anxious to pay off the debt and he foolishly committed the offence.
13. It is submitted that the present offence did not involve the use of weapons. In the case of unarmed robbery, the Court of Appeal did not set a sentencing guideline. Defence counsel referred this court to the case of HKSAR v Ku Kwok Wai & Anor [2012] 4 HKLRD 563 where the Court of Appeal considered several cases and authorities on unarmed robbery.
14. Defence counsel submitted that the sentencing starting point in this case should not be higher than 3 years’ imprisonment. It is also submitted that as the defendant pleaded guilty, he should receive a one-third full sentencing discount. He also submitted that defendant is deeply remorseful and that he hopes that the court would notice that he had a change of heart and left the handbag at the scene.
15. It is said that the victim in this case did not suffer any financial loss.
16. It is also said that defendant vowed never to commit another offence. Defendant also tendered mitigation letter written by himself to show his remorse.
17. Defence counsel submitted that defendant did not have similar criminal record in the past and that his criminal record is not bad.
18. As for the suspended sentence imposed on the defendant, defence counsel asked this court, whilst activating the same, would consider the totality principle and to order the sentence of the suspended sentence to run concurrently with the sentence to be passed to the defendant in this case.
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. In the case of HKSAR v Wu Yee Ki, CACC 513/2005, it was said that robbery by reason of its nature of offending demand an immediate custodial sentence.
21. The defendant here is a man with two previous convictions, not similar.
22. This is a case of unarmed robbery in a public place by a lone robber, late at night, preying on a lone lady walking in the street.
23. There is no actual guideline for the offence of unarmed robbery as submitted by defence counsel.
24. There are however previous cases which suggest that in the absence of aggravating factor, sentencing starting point of 4 years’ imprisonment appears to be the maximum, HKSAR v Lam Ka Hung, CACC 294/2003.
25. The circumstances under which an unarmed robbery was committed varies and from a simple snatching to one coupled with serious assaults. In the case of Ku Kwok Wai said earlier, the court adopted a starting point of 3 years and 3 months for the offence of robbery. In that case, the robbery was a joint enterprise involving two persons but only one of the people involved in the robbery was actually seen by the victim. The victim in that case was pushed to the ground and there being no substantial injuries caused.
26. In our case here, because of the pull by the defendant, Ms Choi lost her balance and was dragged for 5 metres on the ground. From the photos, one can see the injury on the victim as a result. Although they were mere abrasions, that involved erosion of quite an area of skin of the victim at various parts of the body. That must be painful.
27. Although the victim ultimately suffered no monetary loss as the defendant left the handbag at the scene during his flight from the scene, there is no doubt that the victim had been shocked by the incident. The incident happened late at night and the defendant had, as he admitted, preyed on a lone lady walking in the street.
28. Considering the circumstances surrounding the commission of the offence and the relevant authorities, this court finds the appropriate sentencing starting point would be one of 3 years and 3 months’ imprisonment.
29. This court has also considered fully all that was being submitted by the defence counsel including, of course, the mitigation letter by the defendant himself.
30. This court finds that the most valid mitigating factor is the plea of defendant, of which he is entitled to full one-third sentencing discount.
31. Therefore, for the present offence, the defendant is sentenced to 2 years and 2 months’ imprisonment.
Suspended Sentence
32. Defendant was sentenced to 2 weeks’ imprisonment, suspended for 15 months on 28 May 2018. He has committed the present offence on 11 January 2019, ie within six months. This court sees no valid reason for not activating the sentence. Accordingly, suspended sentence of 2 weeks’ imprisonment is activated.
33. Defence counsel asked this court to consider the totality principle in order that the two sentences be made concurrent. The two offences are entirely separate and distinct in all respects. This court does not find it appropriate to order the sentence of 2 weeks’ imprisonment or any part thereof made concurrent to the sentence imposed in the present case.
34. Accordingly, defendant is sentenced to a total of 2 years 2 months and 2 weeks’ imprisonment.
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