HKSAR v. Ngo Quang Duc

DCCC 263/2018

[2018] HKDC 1223

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 263 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to attempted robbery.

2.At all material times, Madam YAU Kin-ying ("PW1") was employed as a cashier of the "7-11" Convenience Store situated at G/F, Nos.44-48 Pei Ho Street, Sham Shui Po, Kowloon ("the Store"). PW1 was on duty at the Store in the morning on 19 January 2018. At around 7:14 a.m. that day, whilst PW1 was working alone inside the Store, the Defendant approached PW1, who was standing inside the cashier counter, and said "Get money" in Punti. He then pushed open the cubicle door which was used to separate the cashier counter from other area in the Store and entered into the cashier counter. The Defendant also brandished a nail clipper (about 6 cm in length) from his trousers' pocket and attempted to flick out its metal blade. However, when the blade failed to be extended, he knocked it against the cashier counter multiple times whilst repeating his demand "Get money" at PW1.

3.Afterwards, the Defendant dropped the nail clipper onto the ground. He went to the Snack Bar inside the cashier counter and grabbed a scoop (about 30 cm long). He banged it against the counter whilst repeating his demand for money. PW1 discreetly pressed the alarm situated under the counter to report the case to the police.

4.PW1 tried to escape but was pushed by the Defendant into the cashier counter area, causing her waist to hit against the cigarette shelf installed in the cashier counter area. At around 7:15 am, a customer CHAN Mo-nam ("PW2") entered the Store. The Defendant was pushing PW1 with both hands when PW1 tried to come out of the cashier counter. PW2 told the Defendant that he would report to the police but the Defendant ignored him. PW2 then called 999 police hotline. Nevertheless, the Defendant remained shouting and continued with his demand for money. PW2 told the Defendant to free PW1 in order that PW1 could go inside the staff room at the rear part of the Store to get the key to open the cashier. The Defendant let PW1 go to the staff room.

5.After PW1 went to the staff room, the Defendant forcibly pulled out the cashier tray from the till machine and a wooden drawer installed therein. All the banknotes and coins inside the tray were scattered onto the ground. The Defendant also pushed a bun steaming machine (worth about $7,000) from the Snack Bar onto the ground and it was damaged. At this juncture, police officers including PC 14162 ("PW3") and PC 11307 ("PW4") arrived at the scene and subdued the Defendant. According to the officers, the Defendant did not appear to be under the influence of alcohol.

6.CCTV installed inside the Store captured the incident (lasting approximately 5 minutes). The Defendant was forthwith arrested. In the subsequent cautioned interview at the police station in the presence of a Vietnamese interpreter, he said he could not recall anything during the incident and had nothing to say.

7.PW1 did not sustain any injury during the incident. However, the cashier machine worth about $2,000, a wooden drawer worth about $2,000, and a bun steaming machine worth $7,000, were damaged. Two cartons of cigarettes worth $114 were found to have dented packaging.

Mitigation

8.The Defendant is 37 years old, a Form 8 recognizance holder.  He had a record for going equipped for stealing and another for unlawful remaining.  His wife and his daughter are in Vietnam.  His AIDS has spread to them.  His illness has rendered him, the sole bread winner, unable to continue to work as a fisherman.  He was driven by debts and ill health to come to Hong Kong to seek refugee status.  His counsel Miss Wong accepts that his non-refoulement claimant status is an aggravating factor in his sentence. 

Sentencing considerations

9.In Mo Kwong-sang v R [1981] HKCA 359/1981, [1981] HKCA 359, Roberts, C.J. has this observation:

12. We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

13. If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

14. If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

Sentencing this Defendant

10.He pushed PW1 with both hands when PW1 tried to come out of the cashier counter. He continued with the robbery despite PW2’s warning to call the police. Later, he even entered the cashier counter and took a scoop to bang against the counter to threaten PW1 to get him money. He pushed PW1 into the cashier counter area, causing her waist to hit against the cigarette shelf as PW1 tried to escape. He also damaged business property worth $11,000. 

11.For the act of attempted robbery, I take a starting point of 3 years 2 months.  It is to be aggravated by his non-refoulement claimant status to the extent of 4 months.  I give a one-third discount for his plea of guilty.  The sentence is 2 years 4 months.