HKSAR v. YEN WEI

DCCC 1130/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1130 OF 2013

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Reasons for Sentence

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1.  In this case, the defendant has pleaded guilty to one charge of robbery and one charge of remaining in Hong Kong without the authority of the Director of Immigration. He has admitted the facts and I have convicted him on both charges.

2.  The defendant admitted the summary of facts and that summary shows that at about 8.30 on 1 November the victim was waiting for her family in Lok Ma Chau in the New Territories.  The defendant approached the victim and asked for a cigarette and she refused.  The defendant tried to snatch her handbag which contained a mobile phone, some cash of 500-odd dollars and other miscellaneous items.  The victim resisted.  There was a struggle.

3.  The defendant grabbed her neck, pushed her to the ground.  She would not let go of her handbag.  The defendant dragged her along the ground for a short distance and as a result of that she had abrasions on her right knee and her left hand.  The defendant eventually took the victim’s handbag and ran away.

4.  The police were called and attended the scene. They intercepted and arrested the defendant.  He admitted straightaway he had sneaked in from the Mainland and robbed the victim.

5.  What is described as “E2” was recovered, a mobile phone, and the defendant was eventually identified and it is admitted on the facts that he had no entry of arrival record into Hong Kong.

6.  The defendant’s antecedents were admitted.  He has a criminal record showing six previous convictions involving a total of eight charges.  He was first convicted in 2003 for offences of burglary, possession of offensive weapon and remaining in Hong Kong.  He was convicted in 2006 of blackmail and, including today, he has been convicted a total of six times for remaining in Hong Kong.

7.  He is 33 years old and is an illegal immigrant born in Hunan in China.  He had been working in China as a factory worker.  His family are farmers.

8.  He was, as I say, sentenced to 20 months’ imprisonment on 15 September 2012 and was released from prison on 24 October 2013, committing this offence a few weeks later on 1 November.

9.  In mitigation, his family circumstances were set out.  It was said that not a great deal of violence was used and the victim’s injuries were minor and he is remorseful for what has happened. 

10.  Naturally, I have to consider the appropriate sentence for each of these offences and then grant the defendant a discount on those sentences for his plea of guilty and there is no reason in this case to depart from the one-third normal discount for a plea of guilty.

11.  In respect of the first charge, the robbery, the offence itself could be properly said to fall within the category of unarmed robbery.  In an unarmed robbery, a sentence of 4 years’ imprisonment can be expected to be imposed.

12.  That was established in the case of HKSAR v Ting Chiu & Anor [2005] HKCA 41.  Of course, this is not a ceiling in respect of such offences and where aggravating features exist that can be reflected in a higher sentence being imposed.

13.  In this case, there is an aggravating feature in that there is a use of violence, which cannot be described purely as being minimal.  The victim was grabbed by the neck and dragged along the ground when she held on to her handbag, causing her the injuries of abrasions on the knee and left hand.  That is an aggravating feature of this offence and I consider it requires an enhancement from the base figure of 48 months’ imprisonment (or 4 years).

14.  I consider the appropriate sentence for Charge 1, reflecting this feature, is one of 51 months’ imprisonment.

15.  After discount for the defendant's plea of guilty, this leaves a sentence of that charge of 34 months’ imprisonment.

16.  The second charge is the charge of remaining in Hong Kong.  The sentence for a plea of guilty, after deduction for one-third for a person of clear record would be 15 months’ imprisonment on a first offence.

17.  Obviously, this figure can be enhanced due to repeat offending. 

18.  This is the sixth time the defendant has done this, has entered Hong Kong without the authority of the Director of Immigration, most recently receiving a sentence in 2012 of 20  months’ imprisonment.

19.  I consider the appropriate starting point for this offence to reflect his repeat offending in respect of this matter is one of 33 months’ imprisonment.

20.  I will reduce that, following his plea of guilty, to a sentence of 22 months’ imprisonment.

21.  It is normal for the sentence on a second offence to be served partly or wholly consecutively to any other sentence for which the defendant is being prosecuted following his unlawful entry into Hong Kong.

22.  In determining to what extent that sentence or what part of that sentence must be served consecutively, I must bear in mind what is the appropriate overall totality of sentence for these offences, bearing in mind the defendant’s repetition of such offences and that he has only recently been released from committing the offence of remaining in Hong Kong.

23.  Having regard to these factors, I will order that a total of 14 months of Charge 2 be served consecutively to Charge 1, and the balance of 8 months be served concurrently.

24.  This will give an overall total sentence of 48 months’ imprisonment (or 4 years’ imprisonment) for these offences.