HKSAR v. Fu Hing Shing

DCCC 126/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 126 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “assault with intent to rob”, contrary to section 10(2) of the Theft Ordinance, Cap. 210.

The facts

2.Mr Chan Ting Hei is a Form 2 secondary school student.  On 9 November 2015 at about 1:30pm, Mr Chan was on his way to school.  When he was near Ting Tai House, On Ting Estate, Tuen Mun, he was approached by the defendant from the front.  The defendant tried to snatch his mobile phone from his right hand.  When Mr Chan held onto the phone, the defendant hit Mr Chan’s at least twice on his head and twice on his abdomen.  Mr Chan shouted for help and the defendant fled empty-handed. 

3.The matter was reported to the police.  Upon medical examination, Mr Chan was found to have tenderness on his scalp and left little finger. 

4.Subsequently, the defendant was arrested.  Under caution, he admitted that he intended to snatch the phone because he had no money.    

Mitigation

5.The defendant is aged 30.  He is married with a son aged 10.  Previously he worked as an air-conditioning technician earning about HK$12,000 to HK$13,000 per month. Prior to the offence, he had been unemployed for several months.  Since he was the sole breadwinner of the family and he had no money to support the family, he therefore committed the present offence.   He has 3 previous convictions, all relate to theft.  He was last sentenced in January 2016 and on that occasion a suspended sentence previously imposed on him was activated. 

6.Mr Lee, representing the defendant, referred this court to two cases[1] showing the usual starting point adopted for an unarmed robbery is in the range of 2½ years to 4 years.   Mr Lee submitted that the defendant admitted the offence after he was intercepted by the police.  The offence was not premeditated.  No weapon was used.  The victim did not suffer any loss.  Since the offence was committed in a public place, the victim would feel more secured and less frightened.  The injury caused to the victim was not severe.  Mr Lee further submitted that the defendant decided to plead guilty at an early stage indicating his remorse.  The defendant had learnt a lesson after serving a period of imprisonment as a result of the last conviction.  Given he has family support and he is remorseful, the defendant is unlikely to re-offend.  Mr. Lee asked the court to impose a lenient sentence on the defendant.

7.Mitigation letters from the defendant and his family members show the defendant is remorseful and ready to shoulder the legal consequence.

Sentence

8.Although the defendant is charged with the offence of “assault with intent to rob”, the criminality of this offence is the same as the offence of “robbery”.  While there is well settled sentencing guideline in respect of armed robbery, there is no sentencing guideline in respect of unarmed robbery.  A starting point of 4 years for a robbery where no weapons are displayed was described as being “at the top end of the tariff”

in R v Yau Kwok Tung [1987] HKLR 782 at 783. The starting point of 4 years for unarmed robbery has also been upheld by the Court of Appeal in a number of cases, such as HKSAR v Ting Chiu & another [2003] 3 HKLRD 378, HKSAR v Lam Ka Hung, CACC 294/2003 and HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137. It should be noted that all these cases excepted Lam Ka Hung relate to unarmed robberies committed by more than 1 culprit.

9.I note that in the case of Secretary for Justice v Au Chi Hang & others, CAAR 2/2005 mentioned in one of the cases referred to by Mr Lee, the Court of Appeal held that the appropriate starting point for the  unarmed robbery involving 4 culprits was 2½ years.  In that case, although 4 culprits were involved, no violence was used and no injury was caused to the victim.  In the present case, the victim Mr Chan was hit at least 4 times by the defendant, as a result of which he sustained tenderness on his scalp and left little finger. I also note that the offence was committed in a public place.  However, I do not agree that this is a mitigating factor.  If the offence was committed involving an invasion of private premises which also includes common parts of a building such as lifts and staircase, that, according to Mo Kwong Sang v The Queen [1981] HKLR 610, is an aggravating factor justifying an upward adjustment of the starting point.  

10.While the defendant has previous convictions for theft, he does not have any previous conviction for robbery.  In the circumstances, I will not regard his previous convictions as a factor justifying an increase in sentence.   

11.Taking into consideration the mitigation and the facts of the present case in that the offence was committed on a young boy, that the young boy must have been put into fear and the use of violence caused minor injuries, I consider the appropriate starting point to be 3½ years’ imprisonment.  Since the defendant pleaded guilty to the offence, he is entitled to the usual 1/3 discount upon his plea. The sentence is therefore reduced to 28 months’ imprisonment.