HKSAR v. Zhang Lei

DCCC 65/2020

[2020] HKDC 675

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 65 OF 2020

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Reasons for Sentence

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Charge

1.D pleads guilty to a charge of robbery which is particularised as committed with a person unknown. 

Facts

2.At 1600 hours on 9 September 2019, a Chinese female (“SUSP1”) solicited PW1, who was carrying his shoulder bag with $72,000 cash (“S/ppty”) in it at that time, for sex service at $200 at Waterloo Road near Shanghai Street, Yau Ma Tei, Kowloon. PW1 agreed. At 1610 hours, SUSP1 and PW1 went to Room 1, 2/F, 358 Shanghai Street, Yau Ma Tei, Kowloon (the “Room”). PW1 placed his shoulder bag on a chair near the entrance of the Room.

3.While PW1 was taking off his clothes, two Chinese males, namely D and an unknown male (the “Unknown Male”) suddenly entered the Room and looked through PW1’s shoulder bag. When PW1 tried to stop D and the Unknown Male, D assaulted PW1 barehanded while the Unknown Male took away the S/ppty. D and the Unknown Male then fled the Room, leaving SUSP1 behind. PW1 then reported the case.

4.While doing so, another Chinese male (“SUSP2”) who claimed himself to be the landlord of the premise entered the Room and asked PW1 not to alert the police, and said he could take back the S/ppty for him. SUSP2 then opened the door and took a bundle of bank notes from the Unknown Male, who was standing just outside the Room, and returned it to PW1. SUSP1 left the Room while PW1 counted the money and discovered SUSP2 only returned $60,000 to him. While PW1 confronted SUSP2, the police called back PW1. PW1 picked up the call secretly and went down the building in order to avoid raising SUSP2’s alertness. SUSP2 left the Room with PW1 and disappeared. Both SUSP1 and SUSP2 cannot be located.

5.Upon police arrival, sweeping was conducted. D and the Unknown Male were found and arrested on the rooftop of the same building. $39,100 (“E1”) was seized from D upon searching.

6.In the ID parade of 12 September 2019, PW1 positively identified D. In another ID parade, PW1 failed to identify the Unknown Male.

7.The prosecution case is that at all material times, D stole, and immediately before doing so, used force on PW1 by assaulting him barehanded.

Mitigation

8.D is 30 years of age, of clear record in Hong Kong. He is a Mainland China citizen born in Wubei, of primary education level. He works as a chef in a restaurant whereas his wife is a retail salesperson. His father had passed away many years ago. He has to look after his mother and maternal grandmother, both of ill health. His grandmother is about to undertake a substantial heart operation which he and his wife cannot afford. On 6 September 2019 he came to Hong Kong as a visitor holding a two-way permit. He intended to buy medicine which he believed could defer the operation.

9.The Unknown Male, actually called “Lee”, was his friend. He wanted to borrow money from Lee. Lee proposed to join the other accomplices in stealing from the customers who went up to the Room of SUSP1. D had pushed PW1 away in the course of taking the property without injuring PW1.

10.Counsel in mitigation refers to R v Mo Kwong-sang [1981] HKLR 610 where it is stated that armed robbers shall see 5 years as a starting point in the absence of aggravating factors.

11.In R v Yau Kwok-tung CACC 17/1987, the defendant and his accomplice robbed a couple in the early morning. The man lost $300 whereas the wife suffered no loss though felt very frightened. The Court of Appeal regarded 4 years at the top end of the tariff for robbery where weapons were not displayed. However, based on the time of the offence and the wife’s fright, the sentence was not considered manifestly excessive.

12.In HKSAR v KU Kwok Wai and Another CACC 14/2012, two defendants robbed a 17-year-old student of an iPhone in the lift lobby of her resident building before 5 a.m. She was pushed on the back forcefully before her phone was snatched. The phone was recovered after a short chase by the police. The sentencing judge took 3 years 3 months as the starting point. It was considered appropriate on appeal.

Sentencing D

13.There were 4 people in joint enterprise. This gang targeted SUSP1’s customers, who would be most vulnerable, being alone and little dressed in a private room. I take 3 years 6 months as the starting point. After a one-third discount, the sentence is 2 years 4 months. I reduce it by 2 months to reflect the full recovery of property of $72,000 (namely $60,000 returned by SUSP2 and $12,000 from E1). The sentence is 2 years 2 months.