HKSAR v. Siu Chi Wing

DCCC 596/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 596 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to two counts of robbery, contrary to Section 10 of the Theft Ordinance, Cap. 210.

Facts

2.The Defendant admitted the Summary of Facts that were read into the record by the Prosecution.  The facts are relatively simple.  In respect of Charge 1, the robbery took place at the 7-Eleven Convenience Store at the Ground Floor, No. 116, Pei Ho Street, in Sham Shui Po.  At around 6.49 a.m. on 10 May, 2016, whilst Ms. Chan Kam-lin, a part-time saleswoman employed at the store was counting the cash at the cashier and preparing to hand over the duties to another salesperson on the next shift, the Defendant walked into the store.  He was carrying a wooden stick 2.5 feet long. The stick was produced and viewed by the Court, and a photograph of it was also submitted. The Defendant started to damage the cashier machine, the repair cost of which was $2,000, the credit card reader, valued at $1,000 and the octopus card reader, valued at $800, hitting them with the wooden stick.  He yelled at Ms. Chan and other salespersons in the store that he was there to damage the site. The cashier machine and the two card readers were damaged.  The Defendant then went to a display rack next to the entrance, and took a bottle of drink, valued at $7.90 and left the store without any payment for the drink.  Ms. Chan made a report to the police.

3.Shortly after, at about 6.58 a.m., Chiu Yu-ping, a part-time salesman at the 7-Eleven Convenience Store at the Ground Floor, No. 68 Fuk Wing Street,  in Sham Shui Po, was preparing to hand over his duties to another salesman on the next shift. The cashier machine drawer was open for Mr. Chiu to count the cash.  Suddenly the Defendant walked into the store, pointed a 2.5 foot long wooden stick at Mr. Chiu, declaring robbery.  He demanded that Mr. Chiu give him some packets of cigarettes from the display shelf.  The Defendant also reached into the cashier machine drawer and took cash $600 from the drawer.  Another staff member walked closer to ask about the situation. The Defendant threatened that staff member with the same wooden stick.  The Defendant continued to ask for cigarette packets from the display shelf.  Mr. Chiu took some from the shelf. The Defendant took one packet, valued at $55, and left the store. This is the robbery in respect of Charge 2.  The wooden stick was the same as that used in Charge 1.

4.At about 7 a.m. that day, Ms. Chan saw the Defendant, who was not carrying the wooden stick at the time, running back to the area outside the store at Pei Ho Street, standing near a bank. She saw a police officer passing by and pointed out the Defendant to him.  The police officer arrested the Defendant for the offence at the Pei Ho Street 7-Eleven Convenience Store at 7.07 a.m.  Under caution, the Defendant admitted that he was acting out of impulse – he was thirsty at the time – so he took the wooden stick to the store to rob for a bottle of drink. At about 7.15 p.m., the police officer arrested the Defendant for the robbery at the Fuk Wing Street 7-Eleven Convenience Store. Under caution, the Defendant again admitted that he was acting out of impulse to rob the store for money and cigarettes as he had no money. Upon search, the police officer found one packet of cigarettes and $601.50 on the Defendant.

5.The CCTV cameras in both stores captured what had happened.

6.I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the two charges that the Defendant had admitted and accordingly I convicted him of the two charges of robbery.     

Previous convictions

7.The Defendant has 7 previous convictions in 6 court appearances.  His record dates back to 2004. His most recent conviction was in 2013 for trafficking in dangerous drugs when he was sentenced to 4 years and 8 months’ imprisonment.

8.The Antecedent Statement of the Defendant was read into the record by the Prosecution. No issue was taken on the contents by Defence Counsel.  It disclosed that that Defendant is aged 29 years, and born in Hong Kong.  He was educated to Form 2 in Hong Kong and single.  He was previously employed as a waiter.  He was last released from prison on 15 April, 2016.

Mitigation

9.In mitigation, it was submitted that the Defendant’s father was a Hong Kong resident who died soon after the Defendant was born.  His mother was from China. A relative successfully applied for them to come to Hong Kong – they came in 1998, but the Defendant’s mother died shortly after. The Defendant was only 13 years old at that time.  He was taken care of by a social worker and resided at a hostel which provided residential and educational services for boys between the ages of 12 and 18 years.  The Defendant left the hostel at the age of 18 years.  He had a steady job between 2008 and 2012 as a waiter, and then until 2014 as a casual worker and godown keeper. He associated with undesirable peers and was induced to take dangerous drugs, leading to his being sent to the DATC in 2010.  He continued with this lifestyle and this led to his being convicted in 2013 for trafficking in dangerous drugs. He was released from prison in March 2016. He met his girlfriend again and stayed with her at her home at Fuk Wah Street in Sham Shui Po. He was unemployed and tried to find work but was unsuccessful.  His girlfriend blamed him for not being able to find work. He was under pressure and depressed.  On the night before the offence, he stayed with a friend at Apliu Street in Sham Shui Po. They talked all night and drank beer. The Defendant was upset and unhappy. On impulse, he committed the present offences.  Counsel sought leniency for the Defendant – he submitted that the Defendant was remorseful.  He submitted too that no force was used on anyone in the stores, although there was damage caused in the Pei Ho Street 7-Eleven Convenience Store.  He also submitted that the value of what was stolen was small, that the Defendant acted alone and he was not a professional robber.  He also asked that any sentence should be concurrent in view of the closeness in time of the two robberies.

11.The Prosecution and Defence both agreed that the tariff laid down in the case of HKSAR v. Mo Kwong Sang [1981] HKLR 610 of a starting point of 5 years’ imprisonment for armed robbery did not apply here as the wooden stick used here was not a ‘dangerous weapon’ as defined in Mo Kwong Sang (supra).

12.      Mr. Chau for the Prosecution in this case also referred for my consideration the cases of HKSAR v. Yip Hoi Kei [2005] 2 HKLRD 165, HKSAR v. Lam Chun Nam [2008] 2 HKCLRT 137, and HKSAR v. Au Chi Hang & Others [2006] 2 HKLRD 310.

13.After hearing Counsel in mitigation, I adjourned sentence until today, calling for Background and Psychiatric Reports, which are now before me. Defence Counsel has informed me that he has explained the contents of all the reports to the Defendant who agrees with their contents.

Sentence

14.Robbery is a serious offence and a term of immediate imprisonment is generally called for.

15.The Defendant was interviewed by the Probation Officer for the Background Report. Although Counsel for the Defendant informed the Court that the Defendant’s mother had died soon after they came to Hong Kong, the Probation Officer informed the Court that she had deserted the Defendant soon after they came to Hong Kong.  The Defendant was handed to the Social Welfare Department by his maternal grandmother. The Probation Officer described the Defendant to be ‘carefree to have not offered any ground for mitigation. He just told that he had committed the crime under depressed mood and the influence of alcohol.’ The Probation Officer also described the Defendant’s triad affiliation and drugs abuse in the past.

16.Both psychiatrists in their Psychiatric Reports described the Defendant as calm and co-operative, although carefree when interviewed, with coherent speech.  Dr. Chan in his report described the Defendant as ‘not psychotic. He was not suicidal or violent. He was not motivated to abstain from substance abuse. He said he would not be able to quit substance abuse’.  Dr Chan opined that the Defendant suffered from Methamphetamine harmful use, that he did not have any psychotic disorder, and further inpatient psychiatric care was not indicated. Dr. Siu in his report opined that the Defendant had a history of amphetamine misuse and he had no mental illness. He was observed to be mentally stable and no psychiatric inpatient treatment was required.

17.In determining sentence, I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant as well as the authorities submitted and the contents of the reports now before me.     

18.The offences here are clearly akin to unarmed robberies: the existence of a threat and the use of a degree of force, combined with the use of a wooden stick to reinforce the threat.

19.Here, the aggravating factors are the time the offences occurred, being very early in the morning when there would be few employees or customers in the stores in question, the use of a weapon to reinforce the threat in the form of the wooden stick, and the use of force to damage the cashier machine and card readers in Charge 1. Of course, in such offences, the victims are put into fear, distress and shock, although, fortunately for the victims herein, they did not sustain any injuries and the value of stolen property as well as the damage caused was not great.

20.Save for the pleas of guilty, there is little mitigation of weight before me.

21.Having considered all the factors including the circumstances of the offences as well as of the Defendant, in my view the appropriate starting point in respect of each charge is 4 years’ (48 months) imprisonment.  This will be discounted by the usual one-third to reflect the Defendant’s pleas. On each charge the Defendant is sentenced to 2 years and 8 months’ (32 months) imprisonment.

22.Although these are separate and distinct offences warranting consecutive sentences, I have borne in mind that the two offences occurred minutes apart in the same neighbourhood. I have also considered the totality principle of sentence.  I shall order that the sentences be served concurrently.