HKSAR v. CHEN YONGJIE

DCCC 40/2019

[2019] HKDC 634

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 40 OF 2019

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REASONS FOR SENTENCE

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Background and facts

1.  This morning, the defendant pleaded guilty before me to one count of robbery, contrary to Section 10 of the Theft Ordinance, Cap 210.

2.  The defendant admitted the summary of facts, which revealed that at around 11.55 pm on 9 October 2018, Ms Chan (PW1) left a mah-jong parlour in Mong Kok and started her journey home by taking the MTR from Mong Kok to Lok Fu station.

3.  At around 0015 hours on 10 October 2018, PW1, after exiting the MTR station, walked across a number of streets.  When she reached outside Wing Kwong Pentecostal Holiness Church at Heng Lam Street, suddenly the defendant strangled her neck from behind and PW1 felt that certain hard object was pointed against her back. Defendant told PW1 to keep quiet and not to move.  Defendant then tried to snatch the iPhone X held tight by PW1’s hands.  PW1 did not let go her iPhone and struggled with the defendant.  PW1 shouted for help many times and, as a result, both the defendant and PW1 fell onto the ground.  Defendant then grabbed PW1’s handbag and escaped.  The handbag contained HK$5,000, RMB¥2,000 cash and some personal cards. 

4.  PW2, a passer-by, heard PW1 shouting for help and witnessed the struggle between the defendant and PW1. 

5.  PW3, a taxi driver, also heard the shouts for help.  Later, the defendant entered PW3’s taxi and PW3 drove the defendant to Sham Shui Po. 

6.  CCTV captured how the defendant tailed after PW1 from outside the mah-jong parlour in Mong Kok all the way to the Heng Lam Street.  It also captured the defendant’s escape route after the robbery.  It captured the defendant counting the cash inside the lift of a building as well.

7.  Defendant was arrested by police on 16 October 2018.  Under caution, he admitted that he robbed the woman’s bag because he was in need of money.  He also admitted that he had spent all the cash on eating and other consumption. 

8.  The defendant was positively identified by PW3 in an identification parade.

Mitigation

9.  The defendant is now aged 26 and married with a daughter who is 2 years old.  The defendant has a clear record.  He was born in Mainland but he came to Hong Kong at the age of 16.  He received education up to Secondary 2 level in Mainland.  Before his arrest, the defendant lived with his father, his stepmother and a younger sister at a public housing unit.  His wife and daughter are living in Mainland.  The defendant is the sole breadwinner for his family.

10.  The defendant was a dim sum chef earning about HK$22,000 a month.  He used to contribute HK$10,000 to his family and HK$8,000 to maintain his wife and daughter in the Mainland.  The defendant’s parents are still working as casual workers.  The defendant also has one elder brother who is living separately from them.

11.  In mitigation, it was said on behalf of the defendant that he felt sorry for what he had done and that he would like to convey apologies to the victim, to whom he had brought a frightening experience.  It is submitted that the defendant’s wife needed money for medication and therefore he committed the present offence. 

12.  The defendant has written a letter to court.  I have read it and I received his message that he has deep remorse in the present offence.  The defendant in his letter claimed that he committed the offence impulsively.  He asked for a lenient sentence so that he could take care of his family. 

13.  It was also said on his behalf that there is no use or display of weapon.  Defence solicitor, Mr Kan, urged me to consider this case as an unarmed robbery and the defendant was acting on his own.  It is submitted that no injury was caused to the victim and the court is invited to consider a starting point of 2 years.  It is further submitted that this is an isolated incident and it is unlikely for the defendant to re-offend.

14.  Defence solicitor reiterated that the court should give extra discount for the defendant’s clear record and he has submitted a number of cases, including DCCC 1033 and 1113 of 2008 and DCCC 1097/2013 for the court’s reference.  Mr Kan has also submitted another case, R v Chan Ka Choi [1988] 1 HKLR 530, for my consideration to give extra discount for the defendant’s clear record.

Sentencing considerations

15.  Robbery is a serious offence.  The maximum penalty is life imprisonment. 

16.  I accept that this is an unarmed robbery case.  Although the defendant admitted that PW1 felt that certain hard object was pointed against her back, there is no evidence that it was a weapon.  It could be a prop or dummy weapon, and the court had held that the use of a prop does not fall within the category of armed robbery (HKSAR v On Ling [2005] 1 HKC 227).

17.  However, the defendant in this case did apply a considerable degree of physical violence by strangling PW1’s neck from behind and PW1 also felt that certain hard object was pointed against her back.  As rightly pointed out by defence solicitor Mr Kan, this is a frightening experience to PW1, particularly the robbery took place in the midnight in a street.  What is more, the defendant tried to snatch PW1’s iPhone X and resulting in a struggle between the defendant and PW1.  It is fortunate that PW1 did not sustain injuries when the two fell onto the ground.

18.  In the present case, the defendant acted on his own.  However, he did prey on female victim. He tailed PW1 for a long way by riding the MTR and walking across a number of streets until PW1 reached a quiet place.  As the defendant admitted, when he saw no one was around, he committed the robbery.  It does not seem to me that the defendant was acting impulsively.  I do not accept that he was an opportunistic robber.  From the facts that he had admitted, it is clear that he had planned for the robbery.

19.  A number of cases are often referred to in sentencing for unarmed robberies, namely HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378; HKSAR v Lam Ka Hung, CACC 294/2003 (unreported); HKSAR v Yau Kwok Tung [1987] HKLR 782. 

20.  In sentencing this defendant, I have considered all these cases.

21.  However, in HKSAR v Tsang Wai Man, CACC 288/2006 (unreported), the court stated that every case must be determined on its own facts, in terms of the length of sentence to be imposed in unarmed robbery cases.  There is no tariff guidelines in unarmed robbery cases.

Sentencing the defendant

22.  I do not consider a starting point of 2 years would sufficiently reflect the gravity of the defendant’s case.  Having considered all the relevant facts, the defendant’s background, his clear record, and the mitigation put forth, I am going to adopt a starting point of 3.5 years.  That is, 42 months.

23.  The defendant pleaded guilty and I shall give him the full one-third discount.  He is therefore to serve a term of 28 months.

24.  I am not prepared to give him extra discount for his clear record by exercising my discretion.

25.  COURT: Defendant, you are to serve 28 months.