HKSAR v. Lau Kin Sang and Another

DCCC 29/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 29 OF 2017

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REASONS FOR SENTENCE

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1.The defendants were charged for stealing and attempted robbery at convenience store.  They were jointly charged with one count of theft and one count of attempted robbery and one count of possession of an offensive weapon (Charges 1, 2 and 4), with D1 being charged with a further count of attempted robbery (Charge 3).

2.D1 pleaded guilty to all charges and admitted the re-amended facts, he was convicted accordingly.

3.D2 pleaded guilty to Charges 1 and 2 and admitted the re-amended facts, he was convicted accordingly.  Upon prosecution’s application and his conviction on Charges 1 and 2, Charge 4 against him was kept in court file not to be proceeded without leave.

THE FACTS

4.D1 and D2 worked in a 7-Eleven Convenience Store before and knew each other since 2014.  In July 2016, they talked and decided to steal from the cashier of 7-Eleven Convenience Store together.

Charge 1 (D1 & D2)

5.On 24 July 2016 at 0537 hours, D1 and D2 approached an unattended cashier inside a 7-Eleven Convenience Store at No 8 Shung Shun Street. They opened and stole $6,550 from the cashier.

Charge 2 (D1 & D2)

6.On 4 August 2016 at 0350 hours, they went into another 7-Eleven Convenience Store at Yau Lai Shopping Centre with a view to steal from the cashier thereat.  D1 tried to open the unattended cashier but his act alerted the staff Wong.

7.Wong shouted to stop, D1 covered Wong’s mouth and struggle ensued; D2 joined in and covered Wong’s mouth.  A struggle ensued between the defendants and Wong.  Another staff Jiang was alerted and went outside for help.  D1 and D2 fled away at 0351 hours.  There was no property missing.

Charges 3 & 4 (D1)

8.On 31 October 2016 at around 0329 hours D1 went in the 7-Eleven Convenience Store at Tsui Ping (North) Shopping Centre, and approached the unattended cashier and tried to open it.  A staff Wong noticed D1’s act from the CCTV. 

9.Wong stopped D1 at the cashier and D1 fought back.  They struggle from inside the store to outside of it.  Another staff Lam was alerted and reported to the Police.  A passerby Leung helped Wong subdued D1.

10.During the struggle, a fruit knife wrapped by paper on D1’s person dropped out from him on to the ground.  Five boxes of condom and two bottles of red wine [in the sum of HK$570] were damaged in the course of the struggle. Nothing else was missing.

11.D1 admitted under caution that at around 0215 hours on 31 October 2016 he placed the knife at his waist and left home.

12.D1 and D2 were captured by the CCTV installed inside the respective convenience stores. 

MITIGATION

D1

13.D1 aged 27, single and lived with his aged parents.  He had stable employment working as a waiter before his arrest earning $8,000+ per month.  The parents were on CSSA but D1 would give half of his salary to his parents as family expenses.  He had been remanded since end of October 2016, therefore, he was yet to receive his salary for October 2016.

14.D1 had strong family support.  Members from his immediate and extended family had written mitigation letters for him, to show their concern and support.

15.D1 had only one theft conviction back in 2008.  He was willing to make full compensation to the victims.  The fruit knife in his possession was not used in the attempted robbery.

16.D1 was remorse and has been co-operative since his arrest.  He was a kind person and had signed to donate his organs upon death.  He had learnt a bitter lesson and would not reoffend again.  He urged the court for leniency. He had honoured his promise and made full compensation to the victims.

D2

17.D2 aged 23 lived with his girlfriend and their child was born in April 2017.  D2 had planned to marry his girlfriend upon his release.  He was a construction apprentice before his arrest.  The girlfriend had got him a job offer to work in a restaurant.  He had planned to get a full time job during the day time and continue his apprenticeship after work to improve his long-term career prospective.

18.D2 had strong family and social support.  Girlfriend, girlfriend’s father and his Church had written mitigation letters for him, to show their concern and support.

19.D2 had a clear record.  He was willing to make full compensation to the victim.  He had honoured his promise and made full compensation to the victim.

20.D2 was remorse and has been co-operative since his arrest.  He was a kind person and had signed to donate his organs upon death.  He had learnt a bitter lesson and would not reoffend again.  He urged the court for leniency.

REASONS FOR SENTENCE

21.D2 had a clear record and a young offender in law.  A detention centre report was called for my consideration.  The detention center report stated that D2 was medically unfit for detention in a Detention Centre because of poor exercise tolerance.

22.There is no tariff for theft, all depend on the facts.  The area where the cashier was kept is restricted to the staff, public would not be allowed to enter and temper the cashier in any store.  There was certain degree of trespassing in stealing from unattended cashier.  The starting point for non-domestic premises burglary is 30 months.  The present case was very much akin to burglary save without breaking in.

23.The defendants were not simply an opportunist, they took advantage of their past working experience at 7- Eleven Convenience Store, picked the good time and committed the theft together with mask and gloves on to avoid leaving any fingerprint and being captured by the CCTV installed.  I consider the appropriate starting point for charge 1 to be 21 months.

24.It has been accepted that 4 years’ imprisonment is at the top end of the tariff for robbery where weapons are not displayed.  An attempted robbery is no less than a completed robbery in term of criminality.

25.In HKSAR v Lam Ka Hung [2004] CACC294/2003 victim in that case was the subject of a handbag snatch.  Her shoulder was pressed down and she struggled with the assailant and fell down.  The appellant in that case had 11 previous convictions, none of those were in any way related to robbery or even violence and in the circumstances of that case, the Court of Appeal decided that a 4 year starting point was appropriate.

26.In Charge 2, the defendants entered the store with mask on.  Upon discovery in the course of stealing, though briefly, covered the mouth of the staff one after the other and struggle with the staff.  The struggle last for a minute and the defendants fled.  No lose and damage was caused.  I accept this incident were not in the higher end of the scale and consider a starting point of 3 years would be appropriate.

27.For Charge 3 D1 wearing mask and gloves equipped with a knife, committed the theft on his own.  Upon discovery, he fought back for his escape and at no time he attempted to use the knife on his person.  The struggle however caused damage to goods in the value of $570.  D1 offered and made full compensation to the damage caused.  I consider a starting point of 3 years would be appropriate. 

28.For Charge 4, the possession of the knife, in the course of robbery in a convenience store, I consider the appropriate starting point to be 9 months’ imprisonment. 

29.D1 indicated his plea at the earliest stage, he was entitled to the full 1/3 discount for his plea.  D1 offered and made full compensation to the victim of Charge 1, this was a positive mitigating factor, and I reduced the sentence of Charge 1 by 3 months.  All the offences involved dishonesty committed on different dates, I considered that they were separate incidents, however, after taking into account of the totality consideration, the sentence of these offenses would run partly concurrent and partly consecutive.  The possession charge was, however, part and partial of the related offence, I considered the sentence of which should run concurrently with the other charges.  The overall sentence is therefore 29 months. 

30.Report had been called and Detention order was not recommended.  D2 indicated his plea at the earliest stage, he was entitled to the full 1/3 discount for their plea.  D2 also offered and made compensate the victim, as in D1’s case I allowed a deduction of 3 months on charge 1, together with his clear record and age, I allowed a further deduction of 2 months, making a total of 5 months’ deduction on charge 1.  Both of the offences involved dishonesty committed on different dates, I considered that they were separate incidents, however, after taking into account of the totality consideration, the sentence of these two offenses would run partly concurrent and partly consecutive, making a total of 23 months.

ORDER

D1

Charge 1 11 months;

Charge 2 24 months, with 14 months to run consecutive with each other;

Charge 3 24 months, with 4 months to run consecutive with each other;

Charge 4 6 months, to run concurrently with each other, making a total of 29 months’ imprisonment.

D2

Charge 1 9 months;

Charge 2 24 months, with 14 months to run consecutive with charge 1, making a total of 23 months’ imprisonment.