HKSAR v. Tam Ping Wo Angus

DCCC 135/2020

[2020] HKDC 376

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 135 OF 2020

----------------------------

----------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.Defendant Tam Ping Wo, Angus, pleaded guilty before me to two charges, namely Charge 1 of Attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200; and Charge 2 of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of Charge 1 are that Mr Tam, on 17 December 2019, at 7-Eleven Convenience Store, Shop Nos 6-9, Ground Floor, Ning Fung Mansion, Nos 25-31 Main Street, Ap Lei Chau, in Hong Kong, attempted to rob Lam Sin Chi.

3.The particulars of Charge 2 are that Mr Tam, on the same date, at the same place, stole 8 cans of beer, property belonging to The Diary Farm Company, Limited.

Admitted facts

4.The facts admitted by Mr Tam may be summarized as follows.

5.Around 5 am on the charge date, Mr Tam entered the charge location, which is a 7-Eleven Store.  He took 8 cans of beer (valued at $100 in total) from the Store’s freezer to the cashier and displayed a wrapped object and declared robbery.  Shop assistant PW1 believed it was a knife.  Mr Tam demanded PW1 to take out all the cash.  He also demanded PW1 to surrender her mobile phone.

6.PW2 another shop assistant asked Mr Tam what he was doing.  Mr Tam declared robbery again.  PW2 pretended to press the security alarm.  Mr Tam left with the cans of beer.  CCTV captured the incident.

7.Case was reported.  From other CCTV recordings sourced nearby, the police located Mr Tam at an elderly home right above the Store.  He was arrested.  The jacket and umbrella used by Mr Tam at the time of the crime were recovered; as were 4 of the 8 cans of beer stolen from the Store.

8.Under caution, Mr Tam admitted that he took the beer without making payment; that he wrapped a pair of chopsticks with newspaper, pointed them at the staff and declared robbery.

9.PW1 positively identified Mr Tam at an identification parade.

Criminal record

10.Mr Tam has a clear record though he does have a bind-over order made against him on 14 August 2019 in the sum of $1,000 for 12 months to keep the peace and be of good behaviour and not to commit or attempt to commit any criminal act involving dishonesty against any person.

Antecedents

11.The antecedents statement shows Mr Tam is aged 58 (57 at the time of the offences), educated to F3 level, divorced with a son; he has 3 siblings and he lived in a Home for the Aged before being remanded in custody.  Mr Tam used to be a lawyer’s clerk.

Mitigation

12.Mr Tam is unrepresented and was invited to mitigate on his own behalf. However, he has nothing to say.

13.On being asked about his means to pay the sum of $1,000 on breach of bind-over order, he said his younger sister (in court) can pay.

Sentence

14.Attempted robbery is a serious offence the maximum penalty for which is life imprisonment.

15.I take note of the fact that only a dummy weapon was used in the commission of the offence.  According to HKSAR v On Ling [2005] 1 HKC 227, the guidelines for an armed robbery are not appropriate for a case where a dummy weapon was used.

16.However, imprisonment is the only sentencing option.

17.Taking all relevant circumstances into consideration including the fact that no one was injured and the robbery was not successful in that none of the items demanded had been surrendered by the victim, I adjudge a starting point of 3½ years to be appropriate for Charge 1.

18.For the theft offence, the items stolen were minimal in value and half of the stolen goods were recovered though perhaps are not of much use to the store now.  For Charge 2, I shall adopt a starting point of 6 months’ imprisonment.

19.Mr Tam has pleaded guilty at an early opportunity.  I shall give him the full 1/3 discount.  In a case involving such a serious offence as attempted robbery, a previous clear record will count little as a mitigating factor; nor can I discern any other mitigating factors which could qualify him to any further discount.

20.The theft offence was committed at the same time as the attempted robbery.  I am satisfied that in the context of this case, concurrent sentences may be imposed for the two offences.

21.I am also satisfied that on the facts as admitted by Mr Tam, there has been a breach of the terms of the bind-over order.

(Mr Tam, please stand)

22.For Charge 1, Mr Tam shall go to prison for 28 months.  For Charge 2, he shall go to prison for 4 months.  The sentences are to be served concurrently.

23.On his breach of the bind-over order, I order Mr Tam to pay up the sum of $1,000 within 3 days.