HKSAR v. Lee Ming Chun

DCCC 289/2020

[2020] HKDC 551

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 289 OF 2020

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

Before: Deputy District Judge Terence Wai

Date: 06 July 2020

Present: Mr Cheng C C James, Counsel on Fiat, for HKSAR

Mr Lau Fai, Stanley, instructed by Bryan Chan & Co, for the defendant

Offence:       [1] Robbery（搶劫罪）

[2] Driving an unlicensed vehicle （駕駛未領牌車輛）

[3] Driving without a valid driving licence（駕駛時無有效駕駛執照）

[4] using a motor vehicle without third party insurance（沒有第三者保險而使用汽車）

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

REASONS FOR SENTENCE

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

1.The defendant pleaded guilty to the following offences: 1) Robbery; 2) Driving an unlicensed vehicle; 3) Driving without a valid driving licence; and 4) Using a motor vehicle without third party insurance.

Facts

2.On the night of 26 February 2020, Ms Tang Wai Yee (the cashier) worked alone at the convenience store of Esso Transport Plaza Petrol Filling Station on the ground floor of Transport Plaza in Yuen Long (the store).

3.Around 11:30 pm, the defendant entered the store, picked up a packet of candy and presented a $20 bill to the cashier for payment.  As the cashier was opening the till to get the change, the defendant took out a beef knife from his bag, waved it at the cashier, and declared robbery.  After the cashier handed over to him all the cash in the till, which amounted to about $450, the defendant fled by getting on an electric motorcycle parked nearby and driving away.

4.The defendant was subsequently arrested in his home.  In a video-recorded interview, the defendant admitted the robbery.  He said he had taken the knife from home for use in the robbery, and he had already spent $250 of the stolen cash on food.  The electric motorcycle for his getaway was bought in the mainland for $1,000.  He had no driving licence for it, and he did not know that third party insurance was required for the use of that vehicle.

5.Investigation revealed that the electric motorcycle was not registered and licensed in accordance with the Road Traffic Ordinance; the defendant did not hold a licence to drive it, and he did not have any third party insurance in relation to this vehicle.

Criminal record

6.The defendant has 2 previous convictions, both for gambling in a gambling establishment.

Mitigation

7.The defendant is 67 years old.  He has 3 grown-up children and a 4-year-old step-daughter out of three marriages.  His current wife lives in the mainland together with her daughter.  The defendant lives alone in a public housing unit.

8.He had been working for two weeks as a part-time minibus driver up to the time of the offences.  Before this part-time job, he had worked as a tour bus driver but had been laid off around January this year due to the economic downturn.

9.His counsel Mr Liu said the defendant committed the robbery out of a desperate need for money.  His savings were running out fast.  He had to support his wife and step-daughter to the tune of $2,000 a month, and he was desirous of giving financial assistance to his son who had been injured in an industrial accident.  The defendant now realized the stupidity of his acts.

10.Mr Liu pointed out that such acts were out of the defendant’s character.  His only previous breaches of the law were the two gambling offences.  He was not a violent man.  Although a knife was displayed, the cashier was not hurt, and the store suffered no damage except for the money stolen.

11.Counsel said the defendant was deeply remorseful.  He cooperated fully with the police, and he would like to apologise to the victim for the fright he caused her.  The defendant is willing to compensate the store for the unrecovered amount of $250 of the stolen money.

12.Most important of all, he offered his guilty pleas at the earliest opportunity.

13.Given the defendant’s age and his diabetic condition, defence counsel said the chances of his re-offending were virtually non-existent.

14.The mitigation letters submitted by the defence show that the defendant has a supportive family.  His son and his siblings both speak of the defendant’s remorse, and they ask the court to deal with him leniently.  The defendant makes the same points in his letter to the court.

15.In his oral submissions, Mr Liu asked to court to adopt a starting point lower than the one set out in Mo Kwong Sang v R [1980] HKLR 610, in particular given that apart from his two gambling convictions, the defendant has led an almost blameless life for 67 years.

Sentence

16.This is a robbery committed on a convenience store at night with the use of a knife.

17.While the normal starting point for an armed robbery with a knife displayed to the victim is 5 years imprisonment, as set out in Mo Kwong Sang (supra), the premises robbed being a convenience store makes the offence even more serious, for which a heavy deterrent sentence is called for.  Yeung JA (as he then was) in giving the judgment of the court in HKSAR v Wong Cheung [2011] 5 HKLRD 171, 179 said:-

“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.”

18.The Court of Appeal in HKSAR v Lam Loi CACC 105/2016 made it clear that the victimized premises being a convenience store aggravates the offence of robbery.

19.It was pointed out in mitigation that the robbery did not involve any accomplices, that it was carried out in a rather unsophisticated manner, and that the amount stolen was relatively small.

20.However, I note that this was not an offence committed on the spur of the moment.  The defendant took a beef knife from home for use in the robbery.  I also note from the photographs that he was wearing a cap and a facemask and had the beef knife pointed at the cashier when committing the robbery.

21.Courts have pointed out time and again that financial difficulty does not provide an excuse to the offender to break the law.  It certainly is not a mitigating factor.  If the defendant was in such difficulties, there were other avenues such as CSSA for him to pursue to ease his difficulties.

22.Taking account of all the circumstances, not only do I think it not right to adopt a starting point which is lower than the customary 5 years for armed robbery with a knife, as suggested by defence counsel, I consider it proper to raise it by 3 months on account of the fact that the premises robbed was a convenience store. 

23.I would adopt a starting point of 5 years and 3 months’ imprisonment for the robbery offence, an immediate custodial sentence of 1.5 months each for the offences of driving an unlicenced vehicle and driving without a valid driving licence, and an immediate custodial sentence of 3 months for the offence of using a motor vehicle without third party insurance.

24.The defendant will get a one-third discount in sentence for his guilty pleas.  The sentences after discount will be as follows:-

(i) Robbery (1^st charge) – 42 months’ imprisonment.

(ii) Driving an unlicensed vehicle (2^nd charge) – one month imprisonment.

(iii) Driving without a valid driving licence (3^rd charge) – one month imprisonment.

(iv) Using a motor vehicle without third party insurance (4^th charge) – two months imprisonment.

25.I order that the custodial sentences for the 2^nd, 3^rd and 4^th charges are to run concurrently with each other, and one month of this concurrent sentence is to run consecutively to the sentence for the 1^st charge.  The defendant is to serve a total sentence of 43 months’ imprisonment for all the charges.  In respect of the 4^th charge, I also order that the defendant shall be disqualified from holding or obtaining a driving licence for 12 months from the date of his release after serving the present sentences.

26.Finally, the defendant shall pay compensation of $250 to the victimized company, such payment is to be made within 7 days.

Deputy District Judge