HKSAR v. LEUNG KWOK HUNG

DCCC357/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.357 OF 2011

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Reasons for Sentence

1.  The defendants are jointly charged with one count of robbery, contrary to s.10 of the Theft Ordinance, Cap.210. Both pleaded guilty, admitted to the summary of facts and were duly convicted.

Summary of Facts

2.  At about 10:20pm on 30^th January 2011, PW1 was on his way home from work when he walked passed Chak Fai House, Tin Chak Estate, Tin Shui Wai, New Territories. PW1’s phone rang and he proceeded to answer it. While he was on the phone, D1, D2 and one other male approached PW1 and tried to snatch the shoulder bag that he was carrying from him. D1 used his right fist to hit PW1’s head twice. D2 also hit PW1.

3.  D1 took away PW1’s bag and fled with D2 and the other male. PW1 gave chase and cried out for help. A passer-by helped to subdue D1 while D2 was subdued by a nearby Police officer.

4.  D1 and D2 were arrested and cautioned. Under caution, D1 admitted that he suggested to the other 2 males to rob PW1. D1 claimed that he had robbed PW1 by himself.

5.  PW1 was sent to hospital after the incident where he was found to have sustained the following injuries: Tenderness of the posterior neck muscles and decreased range of movement of neck, mild left anterior chest wall tenderness and mild left parietal scalp tenderness. It would appear that the injuries did not lead to any permanent disabilities.

Previous convictions

6.  D1 has 3 previous convictions, the latest being for the possession of dangerous drugs when he was sentenced to the Drug Addiction Treatment Centre in July 2010.

7.  D2 has 2 previous convictions, respectively in March and July of 2009, for trafficking in dangerous drugs and he was sentenced on both occasions to detention in the Training Centre.

D1’s Mitigation

8.  D1 just turned 20 at the time of sentence. He and his wife are separated awaiting divorce. They have 2 children, aged 2 and 4. His mother is 50 years old and suffers from serious health problem.

9.  Counsel for D1 pointed out that no weapons were involved in the commission of the offence and the physical violence used was not serious. Although the victim suffered injuries, they are not permanent.

D2’s mitigation

10.  D2 is 20 years old, he was 19 at the time of his commission of the offence. D2’s father used to work as a steel binder but had to stop as a result of a leg injury he suffered at work. D2’s mother has always been a housewife, but she suffers from neck problem and is in constant pain.

11.  D2 was educated up to Form 3 level. He himself suffered an accident in 2004 injuring his lower back. He undergone surgery in 2008 and was hospitalized for about 2 weeks. As a result of the pain in his lower back D2 ceased studying and became idle.

12.  D2 got to know some friends in 2009 who had a bad influence on him, leading to his 2 trafficking in dangerous drugs convictions. After his release, still suffering from the back pain, D2 remained idle. The family was relying on CSSA.

13.  On the day of the offence, D2 agreed to meet up with D1 and another friend for dinner at around 9:30pm. When they did get together at around 10pm they saw the victim speaking on the phone while standing alone. D1 suddenly suggested to take the shoulder bag of the victim. There was no prior planning, just a momentary joint action. Very foolishly, D2 agreed to the robbery.

14.  Counsel pointed out that some extent of force was used but was not much. There were no weapons involved. The injury to the victim was just tenderness and he was discharged immediately.

Sentencing cases

15.  I refer to the cases of HKSAR v Ting Chiu & Another [2003] 3 HKLRD 378 and HKSAR v Tsang Wai Man, CACC 288/2006.

16.  In Tsang Wai Man, the Court of Appeal made the observation that Ting Chiu’s case was not a guideline case for sentencing of unarmed robbers in terms of the length of sentence to be imposed. What that case determined, in the words of Woo JA (as he then was) was that:

a. “…a proper starting point, taking into account the robbery in our case being an unarmed one, should, as a matter of principle, be lower than that for an armed robbery of the kind envisaged in Mo Kwong Sang v The Queen [1981] HKLR 610.”

Sentence

17.  In our present case, the robbery was committed by D1, D2 and one other person. This is an aggravating factor. The robbery took place at night on a public street. There was no warning whatsoever for the victim when his shoulder bag was being snatched and when he was attacked.

18.  D1 and D2 are not of clear record. They had both committed the present offence not long after their previous release from detention. Although the amount of violence used was not the worst of its kind, the defendants did cause some injuries to the victim.

19.  I have heard the mitigation put forward on behalf of both defendants and I find that their only true mitigating factor is their plea of guilty.

20.  Having considered all the circumstances of the case, I will adopt a starting point of 4 years’ imprisonment for each of the defendants, reducing it by one third in full recognition of their guilty pleas and sentence them to 32 months imprisonment each.