HKSAR v. Foo Kai Kit, Kevin

DCCC 403/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 403 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges this afternoon. The 1st charge is one of robbery and the 2nd charge one of theft. The defendant has agreed the facts of the case, and I have convicted him of those two offences.

2.The relevant facts for the purpose of sentence are that the robbery was carried out at a health product shop called Meka in Mongkok, Kowloon.  The offence was committed in the early evening of 21 March 2016.  There were two staff present at the shop.  The first, who is PW1, was working at the cashier counter, and PW2 was having dinner inside the staffroom of the shop. 

3.The defendant, who was carrying a rucksack, approached the cashier counter and placed a product on it.  The first prosecution witness questioned the defendant.  On doing that, he took out a cutter from the right front pocket of his trousers and declared robbery. Defendant wanted money from the cash register and said he only wanted banknotes.  The first prosecution witness knocked at the door of the staffroom to alert the second prosecution witness.  She opened the door and saw the scene, and the defendant told her not to move and “don’t close the door”, took out a pair of pliers from his trousers with his left hand and then told them to be quick, not to play any tricks.  He did not want to see blood, just wanted money.

4.PW1 took out the cash from the cash register which was a total of $3,760 and gave it to the defendant.  The defendant took this cash, put away the cutter, picked up the pliers from the floor, then left the shop.  That is the 1st charge.

5.On leaving the shop, the defendant took some baby wash which is a bath product valued at $124.  This was taken from a shelf near the entrance, and that is the 2nd charge.  

6.Both witnesses noted the defendant pushed a trolley at the entrance to the shop when he left the scene.  The defendant was captured by a nearby CCTV camera, and his identity was discovered.  He was arrested on 28 March 2016.

7.Under caution, he said he committed the offence because he had no money for meals.  He admitted threatening a woman with a cutter and a spanner for money.  He had spent the money and discarded the cutter and the spanner. 

8.He later made a video-recorded interview where he expanded upon his original admission under caution.  From this, we find out the defendant has no fixed place of abode and wandered around in Yau Tsim district.  It was the first time he had been to the shop.  He again said that he approached the cash register and demanded money.  The money had been given to him.  He had spent all the money on food.  He had taken the baby wash but he lost it later.

9.The defendant was subsequently identified by both PW1 and PW2.

10.As far as the defendant’s antecedents are concerned, they are admitted.  He is aged 40.  He has seven previous appearances in court.  Six of those are for the offence of possession of a dangerous drug.  He has been sentenced to terms of imprisonment for that offence, and he was sent to Hei Ling Chau Addiction Centre and was discharged there on 10 January 2015.

11.In mitigation, reference is made to the fact the defendant has a son aged 21 who lives in Australia.  Before his arrest, he lived alone in hostels.  After his release from Hei Ling Chau, he had worked as a kitchen helper between January 2015 and October 2015.  He had become unemployed and spent all his savings to support his living.  At the time of his arrest, he was apparently wandering the streets and had no money for food, and that is described as his motivation for this offence.

12.In mitigation, reference is made to the somewhat unprofessional nature of this robbery, right down to the fact the defendant had left the trolley at the entrance that he later wheeled away after the robbery.   

13.This offence, however, can properly be described as an armed robbery.  The cutter that was used in this offence is of the nature of a dangerous weapon.  The guiding principles of sentencing can be found in the case of Mo Kwong Sang v R [1981] HKCU 16.  An armed robbery refers to knives and other dangerous weapons.  So the appropriate sentence in an ordinary case of armed robbery where the accused is carrying a knife or other dangerous weapon which is displayed to the victim should normally be 5 years.  If such a robbery also involves the invasion of a domestic or business premises, a sentence of 6 years’ imprisonment would be appropriate as a starting point.  There are other aggravating factors that can be appropriate, such as the level of threat or physical violence.

14.The most apparent aggravating factor in this case is the invasion of the business premises to commit the offence which would suggest a starting point of sentence of 6 years’ imprisonment for this offence.  There were on the basis of -- agreed by the defence some threats issued but given the overall nature of this offence, I do not believe they would aggravate the sentence beyond the starting point of 6 years set out in the case of Mo Kwong Sang.  

15.I will therefore on the 1st charge adopt a starting point of 6 years’ imprisonment and reduce that to 4 years’ imprisonment for the defendant’s plea of guilty. 

16.There is of course the offence of theft which was committed at the same time.  I take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.

17.Naturally, these offences form part and parcel of the same criminal incident and the sentences should be served concurrently, one to another.  That gives an overall sentence of 4 years’ imprisonment for these two offences.