HKSAR v. Kan Man Ki

DCCC 734/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 734 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences of robbery. He has accepted the facts and I have convicted him accordingly.

2.The robberies were committed on 20 April 2015 and 11 May 2015.  Both followed the same modus operandi of the use of throwing pepper powder into the face of the victim and then taking personal items such as jewellery.

3.The defendant was arrested shortly after the second robbery on 11 May.

4.More detail on the facts shows that in respect of the first offence on 20 April, that occurred at around lunchtime; that is, 1310 hours, at Kowloon Park at Tsim Sha Tsui.  The defendant approached a female victim from behind, threw pepper powder into her face, and snatched her necklace.  The defendant fled with the necklace, but the jade pendant of it was found on the ground at the scene.

5.The second offence occurred on the late afternoon of 11 May 2015; that is, at 1635 hours, at a rear lane in Sham Shui Po.  Again, the defendant approached the victim and threw pepper powder into her face.  There was a struggle, with the defendant snatching the victim’s gold necklace with jade pendant.

6.The defendant fled to the rooftop of a nearby building, where he was later arrested by police.

7.The victim in the second robbery was hurt.  She had tenderness on her little toe, redness in her eyes, and swelling on her scalp and abrasions on her elbows.

8.The defendant was arrested on 11 May, and under caution he said that he was short of money, so he snatched the necklaces, and he said he had used pepper powder to throw into the eyes.

9.The defendant later made video-recorded interviews, giving more detail as to his earlier admissions.  In a further video‑recorded interview he made admissions about the robbery on 20 April 2015.  Again, the detail of the admissions shows that the offences were committed by way of the same modus operandi of throwing pepper in the face.

10.In respect of the first offence, he said that he had sold the necklace for $1,200.

11.As far as the defendant’s antecedents are concerned, he is a male, aged 33 years old.  He was educated to secondary form level in Hong Kong and has worked as a delivery worker and a construction worker.  He is married and has relatives such as father, mother, and a brother.

12.He has a number of previous convictions.  I am told there are 33 previous convictions and 26 occasions when the defendant has been sentenced.

13.The defendant started committing offences as a juvenile in 1996, when he was both placed on probation and then sent to the O Pui Shan Boys’ Home.

14.The defendant has committed many offences of dishonesty such as theft.  It is noticeable that he has been sent to a drug addiction treatment centre in the past.  He has also received sentences of imprisonment.

15.Of relevance is the fact that this is the third occasion on which the defendant has been convicted of robbery.  Two of them occurred in 1996, when the defendant was obviously still very young, and the outcome was his being sent to the O Pui Shan Boys’ Home. 

16.However, in August of 2007, the defendant was sentenced for an offence of robbery and also for an offence of forcible detention.  This was sentenced in the High Court.  The overall sentence was one of 7 years and 6 months’ imprisonment, but the defendant was sentenced to 4 years and 8 months for the robbery.  This would appear to be, given the seriousness of the offence and the fact that it occurred in 2007, an aggravating feature in respect of sentencing in this offence.

17.I turn to the appropriate starting point for sentence in respect of an offence of this nature.  Of course, the case of Mo Kwong Sang v R [1981] deals with cases where a weapon was used.  Here, pepper was used to disable the victim, or distract the victim, which would fall into the category of unarmed robbery.

18.A starting point of 4 years’ imprisonment after trial has been adopted for cases of robbery where weapons are not displayed.  Of particular relevance to this case is the case of HKSAR v Chan Sai Chu [2001] 1 HKLRD 478, where the Court of Appeal said that for a robbery involving pepper throwing, a starting point of 4 years’ imprisonment was appropriate.

19.This is, of course, a robbery involving pepper throwing, and I consider that that starting point is an appropriate figure to take as a base figure.  That, of course, is necessary to be enhanced having regard to the defendant’s previous conviction, which shows the failure of previous deterrent sentences to deter the defendant from committing these offences.

18.I shall add a figure of 6 months’ imprisonment in respect of each charge for that factor. Thus, the starting point on each charge will be one of 4 years and 6 months’ imprisonment.

19.Following deduction of one-third for the defendant’s plea of guilty, this leads to a sentence of 3 years’ imprisonment on each charge.

20.The offences represent separate offences committed on separate occasions.  They are liable to be served consecutively.  I must bear in mind the issue of overall totality of sentence to reach an appropriate overall total for both offences. 

21.I will therefore order that 1 year of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1.  The balance will be served concurrently.

22.This gives an overall sentence for both offences of 4 years’ imprisonment.