HKSAR v. Chan Wing Kit

DCCC 261/2020

[2020] HKDC 421

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 261 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of robbery. He admitted robbing the cashier of a 7-Eleven Convenience Store in Yuen Long of certain food and drinks and cash of HK$6,497 on 12 February 2020.

Facts

2.Around 2:00 am on 12 February 2020, the defendant went to a 7-Eleven Convenience Store on the ground floor of a building in Kau Yuk Road in Yuen Long (the Store).  Having picked up 2 bottles of “Ribena”, 2 cans of “Red Bull”, 3 bottles of “Lucozade”, 2 packets of chocolate, 1 soft bread and 2 sandwiches (the stolen goods) and put them in a shopping basket, the defendant took them to the cashier counter which was being manned by Mr Kwok Man Kit (the cashier).

3.After the cashier finished scanning the items in the basket and putting them into a yellow bag provided by the defendant, the defendant passed the cashier a note (the note) with a message written in Chinese to the following effect - Robbery, please read carefully.  I have an acquaintance at the opposite street aiming a gun at you.  He will shoot if you scream.  I have killed two and do not want to kill one more.  If there is no problem, place all the money into the yellow bag.  You may report to the police after 15 minutes, or else my acquaintance will shoot and I will use a knife.

4.The defendant then displayed a knife which he took out from his jacket, and repeated his demand that the money be put inside the yellow bag, and that a report to the police may only be made after a lapse of 15 minutes.

5.The cashier was scared and he complied with the defendant’s demands by taking out HK$6,497 from the till and putting the money into the yellow bag.  The defendant then left with this bag of stolen properties.  Subsequent checking by the cashier showed that the total value of the goods and the cash stolen amounted to HK$6,656.

6.The course of the robbery was captured by the Store’s CCTV cameras.

7.The defendant was arrested in his home on the morning of 17 February 2020 for the present offence.  A pair of trousers was seized therefrom.

8.After the defendant was taken to the police station, he admitted that he had committed the robbery with a knife, and told the police where he had disposed of the stolen goods, the knife, the yellow bag, and the clothes he wore when committing the robbery.

9.Led by the defendant, the police were able to recover the knife, the yellow bag, and some of the defendant’s clothes.  None of the stolen properties were recovered.

10.In a subsequent video-recorded interview, the defendant told the police that he took the knife from his home on the night of 11 February 2020 for use in a robbery.  Around 11 o’clock that night, he went target-searching to see which convenience store would make an easy target.  The note was written by him around 1:00 a.m. on 12 February 2020 in a McDonald’s at Kau Yuk Road, Yuen Long.  He then splashed red paint on his clothes.  Having taken time to think over his robbery plan, he went ahead and robbed the Store.  He chose this particular store because the staff appeared young and inexperienced. He had discarded the stolen goods and some of his clothes in Lau Fau Shan, keeping only the stolen cash, which he subsequently used up.

Previous convictions

11.The defendant has 3 previous convictions, none of which are similar to the present offence.  However, he has a conviction for theft in 2004, when he was around 17 years old.

Background and Mitigation

12.The defendant is now 32 years old.  He was educated to Form 3 level in Hong Kong.  Before becoming unemployed in January 2020, he had worked as an electrical worker, a warehouse worker, a decoration worker, and a transportation worker.  He got married in China in 2017, but his wife has since then been remaining in the mainland.  He has no children.  At the material times, he was living with his aged father, while his mother and his two older brothers were living together in a separate place.

13.I have carefully considered the written mitigation submission and the authorities submitted by Mr Yiu, solicitor acting for the defendant.

14.Mr Yiu correctly summarized the offence as being a pre-meditated one which was committed at night with the production of a knife and the use of a threatening note.  Regarding the use of a knife, Mr Yiu pointed out that the defendant never brandished the knife in a threatening manner.  From the still captures of the CCTV footage, one can see that the defendant never pointed the knife at the victim.

15.As regards the use of the note, Mr Yiu explained that the defendant was in a bad mood that night, having had a dispute with his mother and having failed to borrow money from a friend.  On top of that, he was out of money and in debt.  Making his demands to the cashier in writing rather than by words of mouth would prevent an escalation of the situation through verbal dispute with the victim.

16.Having referred to the cases Mo Kwong Sang v R [1980] HKLR 610, and HKSAR v Lam Hoi CACC 105/2016, and despite his awareness that robbing a convenience store constitutes an aggravating factor, Mr Yiu nevertheless asked this Court to adopt 5 years as the starting point for the present offence.

Sentence

17.This is a robbery committed on a convenience store in the middle of the night with the production of a knife and a threatening note. None of the stolen properties were recovered.

18.As set out in paragraph 54 of the judgment of Lam Hoi, Yeung JA (as he then was) in giving the judgment of the court in HKSAR v Wong Cheung [2011] 5 HKLRD 171, had this to say in paragraph 16 of that judgment:-

“This court has once emphasized in a case of similar nature, that convenience stores are open 24 hours and in general, carry large amounts of cash, thus are very tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith shop or other shops which carry large amounts of cash; heavy deterrent sentences are called for so as to prevent these shops from falling prey to robbers easily.”

19.The victimized premises being a convenience store is clearly an aggravating factor in a robbery offence.  The amount of increase in sentence would vary from case to case, depending on the particular circumstances of any given case.

20.The defendant committed the present offence with some degree of planning and preparation.  Apart from arming himself with a fruit knife which he took from his home, he took the trouble of preparing a note with a threatening message, splashing red paint on his clothes (which, in my view, must have been done to lend credibility to his having killed before, as the note proclaimed), and homing in on the store after reconnoitering the area for the purpose of choosing a suitable target.

21.I do not accept the explanation that the use of the note was meant to convey the message that “I only want the money, you give me 15 minutes’ time, you will not be harmed” (see paragraph 11 of the Mitigation Submission).  Had the defendant meant simply that, he would not have had to say in the note that he had killed two people already, and that his friend was aiming a gun at the victim from across the street.  I find that the note was used in conjunction with the knife to threaten and frighten the victim in order to secure his submission to and compliance with the defendant’s demands.

22.The defendant’s personal circumstances are of no assistance to him as mitigation.  The fact that he was in financial straits was no reason or excuse for the commission of the present offence.

23.Although he is a man with previous convictions, I will not hold that fact against him in considering a proper sentence.

24.Taking account of all the circumstances of this case, a starting of 5 ½ years’ imprisonment would be a proper one.  For his plea, the defendant will be given a full one-third discount.  For his cooperation with the police, I will give him a further discount of one month, resulting in a sentence of 3 years and 7 months’ imprisonment.

25.The defendant is sentenced to imprisonment for 3 years and 7 months.