HKSAR v. Chan Yiu Chung

DCCC 540/2020

[2020] HKDC 1008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 540 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of attempted robbery. On 25 April 2020 at a money exchange company office at Shop 43, Ground Floor, 2 to 10 Kik Yeung Road, Yuen Long, New Territories, he attempted to rob a female victim.

2.The facts are straightforward. The victim was an employee of Sang Chung Wah Money Exchange Company and on that date at about 10.35 in the morning she was cleaning the windows of the shop from the outside.  The defendant approached her and asked her about remittance matters. She told him that she would answer his questions inside the shop as soon as she finished the windows. 

3.About 10 minutes later, she finished the windows and went to enter the shop premises using her keys.  The defendant was stood right outside the shop.  Just as she opened the first door to the premises, he suddenly pushed her back from behind.  He then attempted to snatch the keys from her right hand but she resisted his attempt and pushed him away.  He did not persevere and ran away.  She suffered very minor injuries but no loss was incurred.  The whole incident was captured on CCTV footage.

4.The defendant was subsequently identified and arrested for attempted robbery.  Under caution, he admitted that he was in need of money and that was why he pushed the woman in an attempt to rob the money exchange.  When he failed to gain entry through the door, he panicked and ran away.

5.In a video recorded interview, he confirmed his admission and elaborated.  He has admitted attempting to rob this female staff member of the money exchange on the material day.

Mitigation

6.The defendant is now 53 years old, married with an adult son.  He is a decorator and construction worker but his work dried up mainly as a result of the COVID pandemic.  He lost his steady income as did his wife.  He has pleaded guilty at the earliest opportunity, which indicates his remorse.

7.The defendant is not a man with a clear record. He has four previous convictions.  In 1985 and 2015, which was his last conviction, he was convicted of theft.

8.I have read letters from his mother, wife and son.  They are here today, very supportive, and know he was desperate to commit this offence.  He did it out of financial pressure to support his family.  He himself is ashamed and sad to have disappointed them.  He too has written to the court to explain and ask for leniency.

9.Ms Lai, on behalf of the defendant, has said all she can say on his behalf.  She has submitted that it was an unarmed attempt to rob the victim and premises.  It was an unsophisticated attempted robbery with the defendant running away as soon as the victim put up a resistance. 

Reasons for sentence

10.There are no tariff guidelines for unarmed robberies.  I have considered several authorities, in particular HKSAR v Ting Chiu [2003] 3 HKLRD 378, as well as HKSAR v Lam Ka Hung, CACC 294/2003. 

11.The Court of Appeal have suggested that a starting point of 4 years’ imprisonment would be appropriate for an unarmed robbery but this would be subject to upward adjustments for any aggravating factors.  Therefore, in the case of an unarmed robbery without use of any weapons, the starting point is generally no more than 4 years’ imprisonment. An appropriate sentence will depend on each individual set of facts and circumstances.  So a 4-year starting point is not a tariff as such but has been held to be appropriate.

12.In the authority of R v Yau Kwok Tung [1987] 4 HKLR 782, the then-Chief Justice, Roberts CJ, referred to the 4-year starting point for an unarmed robbery as being the top end of the tariff.

13.There are several factors or features which may heighten the level of seriousness and be considered aggravating, such as where the robbery involves physical violence or threats or the victim is vulnerable, where the robbery takes place in an isolated location or in domestic premises, or where there are multiple defendants, and there has been a multiplicity of offences of a similar kind. 

14.Any offence of robbery is serious, but, in this case of an unarmed attempt, I see no aggravating factors to take into account. The violence was limited to a push from behind.  The victim may have been alone at the time but she does not appear to have been a vulnerable person by the way she resisted him immediately.  Her actions led the defendant to immediately change his mind and run away.

15.I have taken into account the facts of this case, the background, and everything said on behalf of the defendant.  The defendant has a criminal record but not a particularly poor record and certainly nothing as serious as an attempted robbery.  I find a starting point of 3 years and 3 months appropriate. 

16.The defendant’s early plea has earned him a discount of one-third from that starting point.  Accordingly, after that discount is applied, the defendant is sentenced to 2 years and 2 months’ imprisonment.