HKSAR v. Tang Wing Fai

DCCC 725/2020

[2020] HKDC 1144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 725 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of robbery and one count of possession of an offensive weapon in a public place.

2.On 17 June 2020, in a flat at 135 Prince Edward Road West, Mong Kok, Kowloon, the defendant robbed the victim X, a prostitute residing in those premises and working there as a one-woman brothel.  He robbed her of $540 (“Charge 1”).

3.When the defendant was arrested during a stop and search two days later on 19 June 2020, in Sham Shui Po, Kowloon, the police searched him and found he was in possession without lawful authority or reasonable excuse an offensive weapon, namely one folding knife (“Charge 2”).

4.The facts are straightforward.  The victim X is 46 years old and a sex worker operating from her home premises alone.  At around 3 pm on 17 June 2020, the defendant went to her premises and they agreed on the cost for sexual intercourse.  After sexual intercourse, the defendant was to pay X but instead of money, she saw him take out a 20 cm long folding knife from his bag and point it towards her declaring a robbery.  She was afraid and gave him the cash from a drawer, $540.  He then made her tie her own hands together with a towel and threatened to come back to find her if she shouted for help or called the police.

5.CCTV footage from a camera installed outside the premises captured the defendant entering at around 2.33 pm and leaving at around 2.52 pm on the same day.

6.Two days later, the police intercepted the defendant on the street at lunchtime and searched him.  In his cross-body bag they found a folding knife and a pair of folding pliers.  The defendant was arrested for robbery and under caution admitted that he did rob a prostitute. He elaborated further in a video-recorded interview.  In that interview, he identified himself in the images taken from the CCTV camera footage.  On the material day, he walked by the building and then decided to rob the prostitute.  He admitted that he did enter her premises and did take out a knife, and robbed her of $540.  He also admitted he kept the folding knife on his person for self-defence and the pliers for fixing a water heater.  He was identified by the victim in a subsequent identification parade.

Mitigation

7.The defendant is not a man with a clear record; he has eight previous convictions obtained in seven court appearances.  He has a previous for conspiracy to rob in 2009 when he was 18 years old.  His other convictions include possession of an offensive weapon in a public place, possession of dangerous drugs, gambling and criminal intimidation.

8.The defendant’s best mitigation is his plea of guilty.  Defence counsel has said everything that can be said on his behalf.

9.He is now 29 years old and was born in the Mainland.  He has an 8-year-old daughter by a previous girlfriend who is essentially under the care of his parents.  The child’s mother has disappeared from her life.  He has since married and his wife lives with his daughter and his parents.  Despite this offence, she remains supportive.

10.At the time of these offences he was working at a freight forwarding centre on a casual basis earning approximately $24,000 a month.  He would give $15,000 to his parents to support them and his daughter.

11.I have seen a letter from the defendant’s mother asking for leniency and mercy.  I have been referred to relevant authorities relating to robberies where knives have been displayed, the victim is vulnerable and the premises entered were private.

Reasons for sentence

12.The Court of Appeal has laid down clear guidelines for the assistance of courts in sentencing in matters of this nature.  The seminal decision is that in Mo Kwong Sang [1981] HKLR 610 which, in year 2000, the Court of Appeal in Ma Ping Wah [2000] 2 HKC 566 said that those guidelines did not need any further refinement or general change at this stage.  It has been consistently followed over the years.  It has been decided that the appropriate sentence where the robber was carrying a knife which he displayed to his victim should normally be 5 years.

13.It then suggested that 6 years would be appropriate where private premises, including business premises, are entered. The further suggestion is made that if there is physical violence wracked on the victims, then the starting point should be 7 years.

14.The court went on to say these suggested sentences should be increased if there are other aggravating factors.  Among these, although the list is not exhaustive, are invasion of domestic premises during the night, the presence of more than one person in the group of robbers, threats made to victims, ill-treatment of elderly persons and children and a multiplicity of offences of a similar kind.

15.The Court of Appeal have also established that a sex worker or prostitute is a vulnerable target of robbery in light of the fact it is known to robbers that they work alone in premises, therefore a deterrent sentence has to be imposed to protect such a victim.

16.I have taken into account the facts of this case; the defendant pointed a knife at the victim after entering her private premises with a promise to pay her for sexual services.  For Charge 1, according to Mo Kwong Sang, a 6 year starting point would be appropriate. The fact that victim X was a vulnerable target is a further aggravating factor.  I also take into account he made her tie up her own hands and threatened her with violence if she shouted or called the police.  He did however ask her to tie up her own hands with a towel, which would neither have been secure nor painful.  I find it appropriate to enhance that starting point by a further 3 months to a total of 6 years and 3 months.

17.The maximum term of imprisonment for Charge 2 is one of 3 years’ imprisonment.  I take into account the nature of the weapon here and the length of that weapon.  I find a starting point of 12 months appropriate.

18.The defendant indicated a plea at the earliest opportunity and is entitled to a discount of one-third.  After this discount is applied, I sent the defendant as follows.  Charge 1: 4 years and 2 months’ imprisonment; Charge 2: 8 months’ imprisonment.

19.The defendant has paid compensation to the victim through the police in the sum of $10,540.  $540 was the amount stolen from the victim and $10,000 was compensation for her, to make amends.  He wanted to compensate her for any potential emotional suffering she may have experienced as a vulnerable victim.  Defence counsel has urged me to take into account this compensation paid and acknowledge it in the form of a further reduction.  She has referred me to several authorities where voluntary compensation or restitution should be encouraged with real weight to be given to it as a mitigating factor in sentence.  I have taken into account the prosecution’s stance that the serious nature of this violent charge means that this mitigation is not crucial and weighty mitigation that deserves a significant discount.

20.After considering submissions, I accept that it is a factor in mitigation and the sum was large, but it will not attract a significant additional discount considering the nature of the offence.  I will reduce the sentence for Charge 1 by a further 4 months to reflect the compensation paid and restitution made.  This reduces the sentence for Charge 1 to 3 years and 10 months.

21.I have taken into account the dates of the commission of these offences and the totality principle.  I order that 2 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently.  Accordingly, the defendant is sentenced to 4 years’ imprisonment.