HKSAR v. Tsang Tsz Kin

DCCC 541/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 541 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has admitted the charge that he faces, namely robbery, contrary to Section 10 of the Theft Ordinance, Cap. 210, the type of robbery commonly referred to as ‘taxi robberies’.

Facts

2.The Amended Summary of Facts admitted by the Defendant disclose that on 10 May, 2016, a male taxi driver aged 62 years was driving his taxi with registration number KB1260 in the morning. At about 10 a.m., he picked up the Defendant near Yan Chi House in Tin Shui Wai.  The Defendant sat in the taxi’s rear left passenger seat. When the taxi driver asked the Defendant for his intended destination, the Defendant declared ‘robbery’. The driver turned around and saw the Defendant holding a fruit knife in his right hand atop his right thigh.  The driver opened the back doors of the taxi and shouted at the Defendant to leave his taxi, but the Defendant did not respond.  The driver then closed the taxi doors and drove forward for about 30 meters to a roundabout.  There, the driver got out of the taxi and locked all the doors, leaving the Defendant inside the taxi. The driver called the police. He also looked into the taxi and saw that the Defendant was still holding the fruit knife in his right hand. During this entire time, the Defendant did not display any movement or response.  Upon the police arrival, a police officer saw the Defendant still seated at the rear left passenger seat, holding the fruit knife in his right hand. He asked the Defendant to put down the fruit knife and alight from the taxi.  The Defendant did so – he appeared conscious and fully aware when responding to the police officer’s initial inquiries. The Defendant was arrested and cautioned and admitted to running away from home, having no money and therefore committing robbery with a knife.   The taxi driver did not suffer any injury nor was there any financial or property loss.  The fruit knife was approximately 21 cm in length – the black handle was 9 cm long and the blade 12 cm long with a rounded tip. The actual knife was viewed by the Court – the Prosecution also submitted a photograph of the knife.

3.I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge, and accordingly I convicted the Defendant on the charge that he faced.

Previous convictions

4.The Defendant has 3 previous convictions in one court appearance in 2009. These were offences relating to the making/possession of explosives and possession/custody of prohibited goods (fireworks) and he was sentenced to the Training Centre.

Mitigation

5.The Antecedent Statement was read into the record. No issue was taken on the contents. It disclosed that the Defendant was now aged 25 years, single and born in Hong Kong, educated to Form 1 in Hong Kong. His parents were divorced and he had 2 elder sisters.  He had worked as a warehouse assistant and delivery worker. He suffered from a psychopathic personality disorder and dissocial personality disorder.

6.Counsel reserved further mitigation until reports were available.  I adjourned the matter until today, calling for Background, Psychiatric and Psychologist Reports in light of what was in the Antecedent Statement, remanding the Defendant in custody. Although this is a serious offence, this is his first offence of this nature and his participation is seemingly out of character.  I also warned the Defendant of the likelihood of an immediate custodial sentence. These reports are now before me.  Counsel confirms that he has explained the reports to the Defendant and he agrees with the contents.

7.The Probation Officer who interviewed the Defendant for the Background Report informed the Court that the Defendant came from a broken family.  His parents divorced in 1999 when he was still quite young.  The custody of his two elder sisters was with his mother while his was with his father. His relationship with his sisters was distant and he only had occasional contact with his mother. He was diagnosed with ‘Attention Deficit Hyperactivity Disorder’ (ADHD) when he was 3, and had received treatment for this.  His left hand was amputated because of an explosion in 2009 when he was involved in offences involving explosives.  His father described the Defendant as an obedient and good natured person, but with an introverted personality and someone who seldom expressed his inner feelings to others.  The Probation Officer opined that the Defendant was very remorseful for causing worries and troubles to his father, and that he committed the present offence because of poor communication with his father after a dispute at home.

8.The two psychiatrists who examined the Defendant both confirm that he is fit to plead. Dr. Chan in his report said the Defendant suffered from a dissocial personality disorder. But his mental condition was now stable and he did not require in-patient treatment. No psychotic symptoms were seen.  Dr. Choi opined that the Defendant suffered from a psychopathic personality disorder, characterized by repeated antisocial behaviours  exhibiting pervasive disregard for and violation of the rights, feelings and safety of others starting at childhood or teenage years and continuing into adulthood. The prognosis was poor and hardly treatable. Inpatient treatment would not be helpful but the Defendant needed to be closely supervised and monitored in the community. He did not suffer from any active psychiatric symptom.  The clinical psychologist opined that the Defendant’s risk of reoffending was moderate. He had some remorse for his offending behavior but his insight was limited. He opined that the prognosis was guarded given the Defendant’s borderline intelligence and limited insight.        Both psychiatrists also indicate in their reports that the Defendant’s       remorse was ‘limited’ and ‘superficial’.

9.The conclusion in the Background Report reached by the Probation Officer in the Background Report is that the Defendant was brought up in a broken family, he had an unfavorable growth path due to his having ADHD since the age of 3 years. He lost the palm of his hand and he was not motivated in his studies and could not attain satisfactory academic performance in secondary school. Others might look down on him and he did not have friends. The present offence was because of poor communication with his father during a dispute at home. The Defendant had expressed that he was sorry for causing worries and trouble for his father. He would reform himself and resume working to support the family after serving his sentence.

10.Taxi robberies have always been considered to be serious offences. Apart from force being used to deprive the victim taxi driver of his property, taxi drivers are a vulnerable group that need protection from the Courts.  A taxi driver cannot refuse hire and must drive to the destination as directed to by his customer, even if that destination is dark and remote. A taxi driver always carries ready cash in his taxi.  A taxi driver works alone in his taxi and has no protection.  The Courts have therefore said time and again that the proper sentence for taxi robbery is imprisonment for 5 to 6 years: The Queen v Li Lun Hoi (CACC1387/1983), The Queen v Tran Van Anh [1993] 3 HKCLR 122. Counsel for the Defendant also accepted that the starting point for taxi robberies should be between 5 and 6 years’ imprisonment.

11.In the present case, there is the aggravating factor that the Defendant displayed a knife to the taxi driver during the course of the robbery. The Court of Appeal laid down the sentencing tariff in Mo Kwong Sang v The Queen [1981] HKLR 610 that the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife which he displayed to the victim should be 5 years’ imprisonment. The Court of Appeal also said that little account should be given to the previously clear record of anyone who took part in an armed robbery.

12.It is clear from the authorities referred to that the only appropriate sentence must be a custodial one.  

13.I have borne in mind the circumstances of the offence as well as of the Defendant, and the contents of the reports that I have called for. I have also borne in mind the mitigation put forward on behalf of the Defendant and the contents of the letters from the Defendant’s father and sworn mother.  In the present case, I note that the Defendant acted alone, and that the knife at all times was held in his hand on top of his thigh.  He did not use further violence by using the knife or grabbing the hair or the neck of the victim. I accept that he had no actual intention to harm the victim, and he merely wanted to threaten him. Counsel submitted that this was an exceptional case – I do not find that.  I am of the view that the proper starting point should be 5 1/2 years’ (66 months)   imprisonment.

14.As far as mitigating factorsare concerned, the only mitigation of weight before me is the Defendant’s plea, for which he is entitled to the usual one-third discount.  I can see no further mitigation to warrant any further reduction in sentence.  The Defendant is therefore sentenced to 3 years and 8 months’ (44 months) imprisonment.