HKSAR v. Chan Ka Ho

DCCC 186/2020

[2021] HKDC 61

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 186 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.In this case, the defendant, Chan Ka Ho is charged with, pleaded guilty to and convicted of one count of Attempted Robbery, contrary to section 10 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.

2.The facts revealed that the victim of this case at about midday on the day in question (20 February 2020) was waiting for the elevator to go up to her Tsing Yi flat.  She noticed the defendant, together with a woman, follow her into the same elevator.  At the time, the defendant was wearing a hooded garment with a black mask. 

3.When the elevator reached the floor where she had to switch to another set of elevator, the defendant followed the victim into the lift lobby, while the woman who accompanied the defendant remained behind.  While she was waiting, the defendant grabbed her neck from behind causing her to fall on the ground, and at the same time tried to snatch her handbag.  The victim held onto her handbag forcefully and the defendant failed.  He then fled the scene. 

4.On 21 February 2020, the defendant was arrested on On Hoi House, Cheung On Estate, the same estate in which the victim lived.  The defendant admitted under caution that he pushed the victim once. 

5.From his plea and the facts admitted by him, I found that he had, together with another female, attempted to rob the victim. 

6.The defendant did not carry any weapon.  However, he was joined by an accomplice and the attempt to rob was obviously a planned one.  The victim suffered no injury and as a result of her resilience, she succeeded in holding onto her property.  Although it does not say so clearly on the facts, one can imagine the fear that an ordinary person would feel when being set upon by another to try to take her property away by force. 

7.In a case of a similar nature, the Court of Appeal had considered that 4 years would be at about the top of the spectrum for this kind of robbery (see R v Yau Kwok Tung, CACC 17/1987). 

8.In the case of HKSAR v Zhang Lei [2020] HKDC 675, DCCC 65/2020, the defendant had assaulted the victim barehanded while his accomplice took $72,000 belonging to the victim.  It was more of a setup case in that the victim was lured into a room for sex service by a prostitute.  A starting point of 3 years and 6 months was adopted. 

9.In this case, although the facts are not exactly identical, the gravity is similar in nature in that it was a premeditated offence involving an accomplice.  The victim had been put to fear.  A certain physical force was exerted on the victim.  I therefore consider a starting point of 3 years and 6 months appropriate as a starting point. 

10.I turn to consider the background in the case and the mitigations put forward by his counsel. 

11.The defendant is 39 years of age.  He was born in Hong Kong, married with two children who are now in their late teens.  The defendant works as a minibus driver and his wife in the customer service business. 

12.The defendant also has three previous convictions involving four charges, none of which of a similar nature.  However, the defendant’s previous transgressions mean that he is not a person of clear record, and also by reason of his age, he does not merit any special consideration. 

13.I also consider the mitigation letters submitted by the defence, one of them from a customer of the defendant who told this court that the defendant arranged to restore a new cell phone left in the car to its rightful owner.  I have also considered the mitigating pleas of his mother and his wife.  His father has also sent in some good words for him. 

14.I accept that this may be a one-off incident but it is a serious crime involving premeditation and an accomplice.  I therefore consider that those good words by the people who know him or whom he had come across are not sufficient mitigating factors to warrant an additional reduction in his sentence.  The only valid mitigating factor is the fact that he pleaded guilty.  I therefore would follow the Court of Appeal’s direction to reduce the sentence from 42 months to 28 months.

15.There being no other valid mitigating factors, the defendant is to serve these 28 months for one count of attempted robbery, to take effect immediately.