HKSAR v. CHAISONGKAM NATTAPON AND ANOTHER

DCCC329/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 329 OF 2012

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Reasons for Sentence

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1.  D1 and D2 have pleaded guilty to one joint charge of robbery. Though they pleaded guilty at different times and admitted different sets of facts, the Admitted Facts were essentially the same.

The facts

2.  At about 1.30 am on 19 February 2012, Choangchaikitkan  Sunee (PW1) aged 53 and her husband (PW2), aged 57, were on their way to their car.  When they were walking in Yin Chong Street, Mong Kok, PW2 suddenly felt some pain on his head.  D1 then snatched PW1’s handbag, P1, which contained cash of HK$34,800, RMB¥150, PW1’s Hong Kong ID card, 5 bank cards, one cheque, 3 bank passbooks and some keys.  PW1 fell onto the ground during the struggle.  A walkie talkie belonging to the robbers was dropped onto the ground.  One of the robbers took P1 and ran away, the other accomplice also ran away.  PW2 chased after them.  They were seen to board a taxi.

3.  Shortly after, PW2 intercepted D1 and D2 inside a taxi outside Kwong Wah Hospital with the assistance of passers-by.  The police soon arrived.  P1 was recovered and the defendants were arrested.

4.  Medical reports revealed that PW1 was found to be suffering from tenderness over her right neck and redness over right wrist and right ankle. PW2 suffered from tenderness and swelling over his head.  PW1 was discharged on the same day.  PW2 was admitted to the hospital for observation. 

5.  During a subsequent video recorded interview D1 admitted inter alia the following:

1. He had committed the offence.

2. He did not know who attacked PW2.

3. He did not have a specific target for the robbery.

4. He intended to share the proceeds of the robbery with D2; and

5. The walkie talkie was given to him by Ah Gor and D2 was responsible to keep it.

6.  During the video recorded interview D2 admitted inter alia the following:

1. He saw D1 rob PW1.

2. He was afraid that PW2 would hurt D1 so he blocked PW2.

3. He did not attack PW2.

4. He did not know beforehand that D1 would rob PW1.

5. The walkie talkie did not belong to him.

Background and mitigation

D1

7.  D1 is aged 26, married with a 7 year old daughter.  His wife is a housewife.  He has one previous conviction for theft and was fined $2,000 in 2010.  I was told that it was only a shop theft. 

8.  In mitigation, Mr Yeung, counsel for D1, submits that D1 is the sole breadwinner of the family.  He came to settle in Hong Kong from Thailand in 2009.  As he only received education in Thailand equivalent to Form 3 and cannot speak the local language, he could only work as a cleaner in a restaurant earning about $7,000 a month.  Because his income could not meet his ends he committed the present offence.

9.  Mr Yeung says it was D2 who hit the head of PW2.  D1 only snatched the handbag of PW1.  Objection was taken by Mr Cheung, counsel for D2, as to who hit PW2’s head.  Citing seven judgments (note 1) Mr Yeung submits that the maximum starting point for unarmed robbery is 4 years’ imprisonment.  Acknowledging that there are aggravating features in the case, i.e., the robbery was committed by two robbers at 1.30 am, Mr Yeung says this is not a serious kind of robbery because the injuries suffered by the two victims are very minor.  The victims were not frightened and they eventually suffered no loss.

10.  It is submitted that the appropriate starting point should be 3 years.

D2

11.  D2 is aged 23, single.  He came to Hong Kong to join his mother in 2005.  His father and siblings are still living in Thailand.  In Hong Kong D2 worked as a part time cleaning worker before he committed the offence.  He has a clear record in Hong Kong. 

12.  In mitigation Mr Cheung takes objection to Mr Yeung’s suggestion that it was D2 who hit the head of PW2.  Mr Cheung says this case is more akin to snatching, it was during the struggle that PW1 fell on to the ground and hurt herself.  The role of D2 was only helping D1 by blocking PW1. 

13.  It is noted that the fact, as included in the Summary of Facts admitted by D1, that a male held the neck of PW2, was not included in the facts admitted by D2.  Mr Cheung, citing HKSAR v Chan Sin Leung CACC48/2006 also asked the court to take 3 years as the starting point in this case.

Sentence

14.  Robbery is a very serious offence.  While the present case is an unarmed robbery, the aggravating features are that it was committed by two robbers at the small hours of the morning. Though the injuries of the two victims were not serious, the injuries cannot be described as very minor.  Moreover, although it is not clear whether a weapon was used to hit the head of PW2, the blow on him must be a heavy one as it caused haematoma and abrasion on his head.  The blow was no doubt given to achieve the robbery.  

15.  Two out of the seven judgments cited by Mr Yeung refer to sentencing in snatching cases.  Mr Cheung also submits that the present case is akin to snatching.  I do not agree that the present case should be dealt with on the basis of snatching.  Actual violence was used before and at the time of struggling and taking away of the handbag of PW1.  On this basis both defendants were prosecuted for the offence of robbery which they now plead guilty to.

16.  With respect, I cannot agree with Mr Yeung that the maximum starting point for unarmed robbery is 4 years’ imprisonment.  I am sure it was not the intention of Roberts CJ, or other members of the Court of Appeal in R v Yau Kwok Tung [1987] HKLR 782.  In the judgement of Roberts CJ, he never said that 4 years’ imprisonment was the maximum starting point for unarmed robbery.  When he said in the judgment:

“A sentence of 4 years in the circumstances of this case is at the top end of the tariff for robberies where weapons are not displayed.”

He was referring to the circumstances of that particular case. I have no doubt that in unarmed robbery cases, there are cases of particularly serious aggravating features, for example, well planned and organised robbery, a large number of robbers, prolonged and serious violence and, particularly serious injuries to victims, etc., that the starting point can be enhanced to more than 4 years. That said, I am not saying that the present case is one of such.

17.  Mr Yeung, referring to the large amount of cash in the handbag of PW1, asks the court not to draw the inference that D1 had known about it beforehand.  He says D1 admitted under caution that he did not have a specific target.  While there is no evidence that D1 knew there was substantial cash in PW1’s handbag, it should be noted that a walkie talkie belonging to the robbers was left at the scene.  D1 admitted that it was given to him by Ah Gor and D2 was responsible to keep it.  No explanation has been offered to explain why it was carried at the time of the robbery.  Inference is to be drawn that it was in connection with the offence.

18.  Insofar as the roles of the two defendants are concerned, it is accepted that D1 was the person who took away the handbag.  Mr Cheung asks the court to ignore the reference by Mr Yeung about the hitting of PW2’s head by D2 as it was not admitted by D2.  In the Summary of Facts admitted by D2, PW2 suddenly felt some pain on his head.  Medical report revealed he suffered haematoma and abrasion.  Inference is to be drawn that he was hit on his head.  In my judgment it does not matter whether D2 was the one who hit PW2’s head.  The offence was committed in a joint enterprise.  Both D1 and D2 are equally culpable for the offence and liable for the acts of their accomplice within contemplation.

19.  Further, I cannot accept the submission that both victims were not frightened.  It is unrealistic to say that the victims, suddenly encountered by two strangers in the small hours of the morning, with violence applied to them, were not in fear at any time.  The fact that PW2 gave chase to the robbers does not prove that he or his wife were not frightened when the handbag of PW1 was forcibly taken away. 

20.  I do not think that it will be necessary or helpful to set out the relevant facts of the eight judgment cited by both defence counsel for discussion.  Each case has to be decided on its own particular facts and circumstances.  Suffice it to say that I accept in the usual circumstances a starting point of 4 years is at the top end of tariff for robberies where weapons are not displayed.

21.  The starting point, however, can be enhanced when there are particularly serious aggravating features such as the examples that I have given earlier.  In Ting Chiu, a case cited by Mr Yeung, the unarmed robbery was committed by four men on a couple.  4 years starting point was said to be an appropriate starting point.  It is noted that in that case little physical violence was applied to the two victims and the value of the property robbed was relatively small.  The offence was committed at around midday. 

22.  In my judgment, in the circumstances of this case, taking into account the time the offence was committed, the number of robbers and the extent of injuries of the victims, the appropriate starting point should be 4 years’ imprisonment for each of the defendants. 

23.  Financial difficulties cannot be a mitigation in the present case. 

24.  It is put forward as a mitigating factor by Mr Yeung that D1 does not know the local language and his time in the prison will be more difficult than others.  I do not think there is merit in the point.  “Foreigness”, in a suitable case, may be a relevant matter that a sentencer may consider.  There is however no principle that a foreigner should be, as a matter of course, entitled to a reduction in the sentence in addition to the discount he would have for the plea of guilty (see Secretary for Justice v Tse Ki Wu CAAR13/2001 and HKSAR v Owusu Arwusiu Christopher, CACC25/2006).  Here D1 is a local resident.  His claimed inability to speak the local language will not entitle him to any additional reduction in sentence.

25.  The only factor which can reduce the sentence is the defendants’ plea of guilty.  D1 entered a plea of guilty on the first day of trial.  He will get the full credit for his plea and get one-third reduction.  D2 entered a plea of not guilty on the first day of the proceedings.  He only entered his plea of guilty on the second day, however, I bear in mind that he indicated later on the first day that the matter would be a short one and that witnesses would not be required for attendance on the second day, when he indeed reversed his plea.

26.  As no evidence has been adduced before he entered his plea of guilty, I will still leniently treat the plea as a timely plea and give D2 one-third reduction in his sentence. 

27.  D1 and D2 are each sentenced to 2 years and 8 months’ imprisonment.

Note 1

(1) 香港特別行政區政府訴關仲洋, HCMA 474/2006

(2) HKSAR and Chen Juting, HCMA 705/1999

(3) HKSAR and Ting Chiu and another, CACC 174/2003

(4) HKSAR and Lam Chun Nam (林俊南), CACC 464/2007

(5) 香港特別行政區訴馬文廸, [2004]1 HKLRD 1046

(6) HKSAR and On Ling (安寧), CACC 386/2004

(7) HKSAR and Lam Ka Hung, CACC 294/2003