HKSAR v. Shen Suo

DCCC 154/2019

[2020] HKDC 324

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 154 OF 2019

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REASONS FOR SENTENCE

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1.Defendant was convicted of a charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200, on his own plea and agreement to summary of facts.

Facts

2.At about 0250 hours on 4 December 2018, victim was driving a taxi.  Defendant waved his hand to catch this taxi.  Victim stopped and defendant got on the taxi. 

3.When victim drove forward and asked for defendant’s destination, defendant said, “Give out money, want money, robbery!” in Putonghua for a few times.  Feeling scared, victim immediately stopped the taxi, pulled out the ignition key and ran towards a police snap check point on the opposite lane at about 6 metres ahead.  The case was reported.

4.Police went to intercept defendant, who had got off from the taxi then.  Defendant told the police that he robbed because he had no money.  Defendant was arrested for robbery.

Cautioned statement and interview

5.In the video recorded interview conducted later the same day, defendant said under caution that he is a Mainlander and had arrived in Hong Kong the evening before.  He then took a transport to Central for sightseeing.  He went to an unknown bar and drank beer.  He fell down upon leaving the bar.  Some passer-by called the police and defendant was sent to hospital.  Upon discharge, he discovered that his personal belongings went missing.  He made a loss report at the Central Police Station.

6.Afterwards, he wandered around the streets in Central.  As he wanted to stay in Hong Kong but he had no money, he thought of committing robbery.

7.Defendant called a taxi on the street.  As it was in the small hours and there was the victim alone as the taxi driver, he declared “robbery” and demanded money from him.  Defendant also claimed to the victim that he had had a gun, although he did not have, so as to make the victim hand out the money.  The victim ran away.  Defendant searched inside the taxi but he could not find any money or valuable and the police then came to arrest him.

8.Defendant confirmed he was sober and was aware of what he was doing at the time.

Criminal record

9.Defendant, a Mainlander, has a clear record in Hong Kong.

His mitigation

10.Defendant is aged 34. 

11.He is single and he lived alone in Shenzhen before the commission of the offence. 

12.His father died when he was aged 4 and his mother remarried and later died of suicide. 

13.Defendant said he was brought up by his uncle, that he had received education in Mainland up to junior secondary. 

14.He had worked in various jobs after schooling and at time of offence he worked as a plumber and electrician in construction site, earning $260 Renminbi per day. 

15.Defence counsel submitted that in the few days before the index offence, defendant had gambling loss.  He was upset.

16.On 3 December 2018, defendant had a glass of white wine and four to five bottles of beer before he came to Hong Kong for a visit in the evening.  He said he had about cash of RMB¥100 and HK$400 as well as RMB¥2,000 in his WeChat account. 

17.He said he went to a bar in Lan Kwai Fong and drank beer and because he drank too much that he could not control his emotion, he fell and was sent to hospital.

18.After discharge, he was sent to police station, where he made a loss report for his money, mobile phone and entry permit.

19.It was submitted that although the defendant knew what he was doing at the time, he was probably still under some influence of alcohol at time of commission of the offence.

20.Defence counsel submitted that when the defendant stopped the taxi, there was actually a police car with siren on just opposite the road across the street.

21.It was said that defendant declared robbery shortly after he boarded the taxi.  The victim immediately left the taxi and sought help from the police car across the street.

22.It was submitted that no one in his sound mind would have failed to see the police vehicle unless he was under the influence of alcohol or other intoxicating substances.

23.It was also submitted by defence counsel that the defendant was actually sent again to hospital after the video recorded interview and it was found that there was undisplaced fracture of the base of the fifth metacarpal bone, in addition to the tenderness and swelling over the fourth and the fifth metacarpal regions in his right hand.

24.It was also admitted by the defendant that he did possess the necessary mens rea for the offence.

25.Defence counsel referred this court to the case of R v Tran Van Anh [1993] 2 HKLCR 122, where a starting point of 5 to 6 years’ imprisonment is appropriate for taxi robbery where minimal or no violence is used and a weapon, other than a firearm, is merely displayed.

26.In this case, it was submitted that there was no actual violence and that the defendant did not even display any weapon.  In fact, he possessed none at the time of the offence.

27.Although the defendant said in video recorded interview that he told the victim he had a gun, but, in fact, the victim did not hear the utterance. 

28.It is submitted that the degree of fright imposed on the victim was not high and that the victim also suffered no personal injury nor property loss.

29.It was also submitted that the alcoholism problem of the defendant contributed to his commission of this offence and that during the past 16 months of remand, he had deep reflection of himself. 

30.In his mitigation letter to this court, defendant admits that he deserves punishment but he begs this court for leniency.

31.Defendant said he has sincere and thorough reflection on his own character and bad habits.  He says he will be a law-abiding person in future, resisting temptation and overcome his bad habits.

32.Defence counsel submitted defendant was very co-operative after arrest and he pleaded guilty at the first available opportunity, saving the time of the Court.

33.It is said that defendant demonstrates sincere remorse and that, since defendant has now combated his alcohol problem due to his remand in the last 16 months, the chance of him re-offending is not high.

34.It is also submitted that defendant, as not being a local person, suffers certain degree of hardship when he is imprisoned in an unfamiliar environment.

35.It is said also that as the case was adjourned and refixed due to the outbreak of COVID-19, causing some sense of uncertainty to the defendant.

36.Defence counsel urged this court to adopt a lower starting point and give maximum credit for the defendant’s guilty plea and mitigation.

37.It is said lastly that defendant has a clear record in Hong Kong.

Discussion

38.A person guilty of this offence shall be liable on conviction upon indictment to imprisonment for life.

39.Defence counsel referred this court to the case of R v Tran Van Anh, CACC 143/1992, where the Court of Appeal took the view that in normal case of taxi robberies, sentence of 5 or 6 years of imprisonment will not be interfered, in cases where minimal or no violence is used and a weapon other than a firearm is merely displaced. 

40.In this case, defendant did not display any weapon although he did falsely represent to the victim that he had a gun.

41.In the Court of Appeal case of HKSAR v Lam Ka Hung, CACC 294/2003, the court referred to the case of HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378.  The applicant there did not use any weapon in the course of his robbery and Woo JA (as he then was) said at page 383 in that case:

“...we are of the view that a proper starting point, taking into account the robbery in our case being an unarmed one, should, as a matter of principle, be lower than that for an armed robbery of the kind envisaged in Mo Kwong Sang v R [1981] HKLR 610]. However, as it was committed by the two applicants and two other young males at large, the starting point should be 4 years instead of the 5 years as adopted by the judge.”

42.Further, in paragraph 6 of the judgment in the Lam Ka Hung case, reads:

“A sentence of 4 years’ imprisonment for a robbery, where no weapons are displayed, was described by Roberts CJ in R v Yau Kwok Tung [1987] HKLR 782 at 783 (a decision to which the court in HKSAR v Ting Chiu & Anor (above) was referred) as being ‘at the top end of the tariff’.”

43.The court considered a proper starting point after trial would have been 4 years’ imprisonment in that case.

44.Our case here is a taxi robbery committed in the early hours of the morning when taxi drivers are most vulnerable. 

45.Victim here is an elderly man, aged 61. 

46.Defendant has acted alone and no actual violence was exercised on the victim, although defendant did orally threaten the victim and said he had a gun when he declared robbery although he not in fact possess a gun.

47.As the victim fled and left the taxi, victim did not suffer any injury nor did he suffer any financial loss as defendant was unable to find anything valuable in the taxi.

48.However, this is a serious offence and a custodial sentence is appropriate.  There is of course also no reason to justify a suspended sentence here.

49.Considering the circumstances of the case, this is an unarmed robbery but, in the course of commission of this offence, the defendant did declare that he had a gun and the victim is an elderly man, a taxi driver in the early hours of the morning.  This court considers that the appropriate sentencing starting point is 4 years and 3 months’ imprisonment.

50.It is also submitted that defendant was under the influence of alcohol at the time, but self-induced intoxication in my view does not warrant any sentencing discount or reduce the culpability of the defendant in the sentencing of a serious offence.

51.Although defendant has a clear record, in sentencing of this serious offence, little weight should be attached to clear record or youth of the defendant[1].

52.Further, defendant is a visitor to Hong Kong and the same does not carry the same weight as if he is a Hong Kong resident.

53.This court also noted that defendant committed the present offence about eight hours after he arrived in Hong Kong as a visitor, and the court would need to consider whether defendant came here to commit the crime.

54.It is not disputed, however, that defendant was sent to hospital after he had some drinks and had a fall before he committed the present offence, and on this occasion, this court is not satisfied that the defendant came here with the aim to commit the crime and therefore the court is not going to enhance his sentencing starting point.

55.The fact that the defendant committed the offence when the taxi was not far from the police vehicle only meant that the defendant was not alert to his surroundings or that his planning in commission of the offence is not sophisticated, as submitted by defence counsel.  This is not a valid mitigating factor.

56.This court has considered all mitigation submission advanced by defence counsel, including defendant’s own letter in mitigation.  It finds that the most valid mitigating factor is the defendant’s own guilty plea, of which he is entitled to the full one-third sentencing discount.

57.Accordingly, defendant is sentenced to 2 years and 10 months’ imprisonment for this offence.