HKSAR v. Cheung Ho Lun

DCCC 3/2021

[2021] HKDC 615

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 3 OF 2021

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea and agreement to amended summary of facts to a charge of robbery contrary to section 10 of the Theft Ordinance, Cap 210.

Facts

2.At around 2:47 am on 16 October 2020, the defendant went to a convenience store in question.  At the time, PW1 was the cashier at the convenience store while her colleague was taking a toilet break.  The defendant took one bottle of lemon tea from the fridge and approached the cashier at the cashier counter.  While the cashier was scanning the bottle, the defendant took out a chopper with a blade length of about 20 cm from his green recycle bag. He pointed the chopper at her and declared robbery.  The defendant also told her to put the money in the cashier machine and the cigarettes near the cashier into the recycle bag.

3.In fear that the defendant might injure her, the cashier put cash in the sum of $1,440 and 5 packets of cigarettes (valued at $60 each, total value $300) in the recycle bag.  The defendant also put the bottle of lemon tea valued at $13.50 into the recycle bag.  Total value of the robbed items was $1,753.50. Before the defendant left the convenience store he also warned the cashier not to call the police.

4.The robbery was captured with sound recordings by CCTV cameras installed in the convenience store.  A report was made to the police.  Three days later the defendant surrendered himself to the police and was arrested.  He admitted the offence in a video-recorded interview on 19 October 2020.

Criminal record

5.The defendant had 2 previous criminal records involving convictions of 3 charges not similar.

Mitigation

6.The defendant is aged 26.  He completed his Secondary 3 education and started working as a cook earning about $20,000 a month. 

7.Originally, he lived alone and provided monthly contribution to support his mother.  However, due to the pandemic he lost his employment and despite his efforts he was unable to find a job.  He had to rely on his savings and was in financial difficulty.  He had to borrow loan and had to terminate his tenancy and move back to live with his mother and younger sister.

8.Defence counsel conceded that the Court of Appeal case of Mo Kwong Sang v R[1], laid down the starting point of 5 years’ imprisonment for robbery equipped with weapon.  It is also conceded that for robbery involving a convenience store in small hours would increase the gravity of the offence.

9.He also cited the case of HKSAR v Wong Tik On[2], where the sentencing court was of the view that but for the appellant’s confession, the prosecution may have difficulty in proving the case against the appellant as he was wearing a cap and sunglasses at time of commission of the offence.  In that case the appellant was given a further discount of 6 months in sentence because of his confession to the authority.  The Court of Appeal considered the discount appropriate.

10.It is further said that since the defendant pleaded guilty he is entitled to one-third sentencing discount.  He has also shown remorse and undertakes not to recommit the offence in future.

11.It is also brought to the attention of the court that during the commission of the offence no person was injured, and the defendant now makes apology to the victim. 

12.The defendant surrendered himself three days after the commission of the offence and by reason of his confession to the police he had assisted the prosecution in the identification of the person committing the present offence. Defence counsel urged this court to adopt the stance in the case of Wong Tik On for a reduction of sentence. 

Discussion

13.A person convicted upon indictment of this offence is liable to imprisonment for life. 

14.As cited by defence counsel, the applicable sentencing guidelines for the offence of robbery are laid down in the Court of Appeal case of Mo Kwong Sang, where it is said that in robbery cases with a knife or other dangerous weapons shown to the victim, a starting point of 5 years’ imprisonment should be imposed.

15.Further, in the case of HKSAR v Lam Hoi[3], HKSAR v Kwok Cheuk Man[4] and HKSAR v Wong Cheung[5], the Court of Appeal deemed it an aggravating factor in sentencing if the premises involved is a 24 hours’ convenience store.

16.In the case here, the defendant has displayed a chopper with blade of 20 cm when he committed the robbery in the early hours of the day in a convenience store.  This court sees no reason why the sentence starting point of 5 years should not be adopted.

17.Further, the defendant has committed the offence in the early hours in a convenience store which, as said earlier, amounts to an aggravating factor in sentencing and the court will therefore enhance the starting point by 3 months to 5 years and 3 months’ imprisonment.

18.The defendant has made an early guilty plea for which he is entitled to the full one-third sentencing discount.  The fact the defendant has been cooperative with police would not allow a further or justify a further sentencing discount over and above the one-third sentencing discount afforded to the defendant by reason of his guilty plea.

19.However, this court accepts as confirmed by the Court of Appeal in Wong Tik On case, where the defendant confessed to an offence which the prosecution would find it difficult to prove. 

20.The prosecution here has confirmed that this, the present case, is one of those cases.  Accordingly, the defendant having surrendered himself and made the confession in the present case, this constitutes a valid mitigating factor for which this court would allow the approach in the Wong Tik On case and discount his sentence further by 6 months’ imprisonment.

21.Accordingly, the defendant is sentenced to 3 years’ imprisonment for the offence.