HKSAR v. Nguyen Ngoc Nam

HCCC 13/2018

[2018] HKCFI 1493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 13 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Introduction

On 2 January 2018, the defendant pleaded guilty to three charges in the Magistrates Court and was committed to this court for sentence. He confirms his plea before me today by pleading guilty to the charges again and also agrees to the summary of facts as amended in court.

Brief facts

The charges are about three separate robberies committed by the defendant alone, all of which occurred in the small hours of the morning, respectively on the 18th, the 23rd and the 25th April 2017, and at three different 7-Eleven stores. On each occasion, the defendant was armed with an axe of about a foot long, and he threatened the storekeepers named in the charges with it, demanding them to hand over money in the till. In the first robbery, the defendant got away with $8,617.70. In the second one, he obtained $5,780, and the third one, $5,818.80. Therefore, within about a week, he obtained by force spoils of $20,216.5 in total.

Antecedent and previous

The defendant, a Vietnamese, is remaining in Hong Kong on the strength of a recognisance (Form 8). He claims that he entered Hong Kong illegally in December 2015. His criminal records show that this is not the first time he entered Hong Kong illegally. As he had his first court appearance back in February 2007 with convictions of theft and immigration related offences recorded then. His second court appearance was on 13 April 2017 for a charge of criminal damage. He was released immediately upon conviction on that occasion, having already been remanded in custody for a period longer than the two-week imprisonment term imposed for that charge.

As to the defendant's age, there are some discrepancies. The defendant claims that he was born in September 1984, in which case he would now be 33. However, his criminal records show that he was born in February 1982, which case he would be 36 now. The age difference, it is not suggested would cause any difference in sentence.

Sentence

Based on the tariff laid down in Mo Kwong Sang v R [1981] HKLR 46, the starting point for armed robbery is 5 years' imprisonment. With the consent of counsel, I have seen the photos captured from the CCTV footages which show the robberies in action. I can see no reasons in the present case for departing from that starting point. Mr Hui reasonably does not seek to persuade me otherwise. I adopt 5 years' imprisonment as the starting point for each charge.

Furthermore, I note that in each of the three robberies in question, there was an element of invasion of property in that they were all robberies of a convenience store. Although, on each occasion, the defendant did not use force to gain entry to the stores concerned, it was an invasion nonetheless. I note also that the robberies were all committed in the small hours of the day when storekeepers were most vulnerable.

The Court of Appeal has said in HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 698, at paragraph 31 of that judgment, that places such as petrol stations and convenience stores that were open round the clock were susceptible to robbery and had to be protected and that a deterrent sentence was warranted for those who robbed those places. For this aggravating factor, I add 4 months to each charge.

Lastly, the defendant is a non-refoulement claimant. The offences he committed were of a type which affects the very community which allows him to remain at liberty pending his claim being processed. The offences also have an obvious and significant impact on Hong Kong's international reputation as a safe place of law and order. I am also mindful of the fact that the robberies were committed shortly after the defendant was convicted of the offence of criminal damage. There is, therefore, a serious breach of trust and privilege by the defendant who is not normally entitled to be in Hong Kong and whose records show that he had no hesitation to resort to violence.

There are ample case authorities that there should be an enhancement of sentence for this aggravating feature. To name a few, see HKSAR v Mahabul Alam Khan, (CACC 116/2016); HKSAR v Shah Syed Arif, [2016] 4 HKLRD 664. For this reason, I add another 8 months on top of each charge.

As regards mitigation, I trust that Mr Hui has put forward everything that can be said on behalf of the defendant. As regards charges 1 and 2, in my view, the only mitigating factor that may reduce the defendant's sentence is his timely plea for which he is entitled to one third discount. Therefore, the sentences for those charges are each reduced from 6 years to 4 years.

As regards charge 3, apart from the guilty plea, there is one additional mitigation factor which Mr Hui has drawn to my attention. At the time of the third robbery, the defendant was wearing a face mask so that his face could not be shown in the CCTV footage concerned. Therefore, but for the fact that the defendant made confessions to the police in the video recorded interview, there would not be sufficient evidence against him for this offence. This is to be distinguished from the robberies the subject matters of charges 1 and 2. During the commission of those, the defendant did not wear any mask at all, but just wear a cap.

Also, as regards charge 2, there was positive identification of the defendant by a witness (PW4) in an identification parade.

As regards charge 1, the identification of the defendant by another witness (PW2) is, perhaps less satisfactory, but Mr Hui accepts that that would be a matter of weight.

In HKSAR v Ng Wing Chung, CACC 176/2005, Suffiad J giving the judgment of the Court of Appeal said at paragraph 19 of the judgment:

"Whilst that difficulty in identifying the applicant from the CCTV images came about because the applicant, of his own doing, chose to wear a surgical mask in perpetrating those offences, we take the view that some credit must still be given to him for his confessions made to the police after his arrest, but for which these offences would not have been brought home to him."

In that case, the Court of Appeal gave the applicant a discount of 6 months for that factor. In the present case, I, too, give the applicant a discount of 6 months for his confessions and cooperation with the police for charge 3. Therefore, the sentence on charge 3 is further reduced to 3 years and 6 months' imprisonment.

To sum up, the individual sentences on the charges are as follows. Charge 1: 4 years' imprisonment. Charge 2: 4 years' imprisonment. Charge 3: 3½ years' imprisonment.

Lastly, there is the consideration for totality. Having sat back and looked at the matter in the round, I am satisfied that after plea, the overall imprisonment term for the three separate robberies under consideration which were committed on different days and at different convenient stores, should be one of 4 years and 10 months. To achieve that, I order that 6 months out of the sentence on charge 2 and 4 months out of the sentence on charge 3, are to run consecutively to each other and to the sentence on charge 1. Thus, making an overall imprisonment term of 4 years and 10 months.