HKSAR v. Nguyen Thanh Phong

DCCC 845/2021

[2022] HKDC 519

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 845 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of Attempted Robbery.

Facts

2.Around 2140 hours on 27 May 2021, Madam YIP Po-chu (“Yip”)  was waiting for a bus to return home at a bus stop outside Peninsula Square, Hung Hom Road, Kowloon when she was approached by the defendant who was holding a fruit knife in his right hand.  The defendant pointed the knife at Yip, grabbed her right arm with his left hand and shouted in punti “robbery robbery (打劫打劫)”. He then put his left hand into Yip’s handbag and searched for about 5 seconds. Feeling scared and needing help, Yip shouted “robbery robbery (打劫呀打劫呀)”.

3.What happened between Yip and the defendant drew the attention of two male pedestrians (“MP1 and MP2”)  in the vicinity.  When MP1 and MP2 started walking towards the bus stop, the defendant fled along Hung Hom Road towards the nearby Bailey Street.  Having learned from Yip what had just happened, MP1 stayed with her while MP2 chased after the defendant.

4.At one point, MP2 managed to intercept the defendant on Bailey Street, but the defendant denied having robbed the victim and got on a taxi.  Not being able to tell the taxi driver his destination, the defendant got off the taxi after it made a U-turn on the same street.  Thereupon, he was intercepted again by MP2.  At this point, Yip arrived at the scene with MP1.  Upon being told that a report had been made to the police, the defendant attempted to flee but was subdued by MP2.

5.Police conducted a search of the nearby areas and found a fruit knife near a staircase of the Kowloon City Government Offices, one of the places on the defendant’s escape route when he was fleeing from the bus stop.

6.In a video-recorded interview, with the assistance of an interpreter, the defendant admitted that he had picked up a fruit knife from a rubbish bin at an unknown location; he took it out and shouted “Robbery” when he saw Yip with a handbag, but he failed to rob her; he then fled the scene, discarding the knife during his flight; the knife found by the police was the one he had committed the robbery with.  He also said he had committed the robbery because of financial difficulties.

7.Yip suffered no loss of property or injury in this incident.

8.The defendant was a Form 8 recognizance holder at all material times.

Defendant’s Background

9.The defendant is 28 years old.  He is a Vietnamese national.  He was married in Vietnam with a 3-year-old son.  His wife and son live with his mother.

10.He first came to Hong Kong illegally in 2016, but was deported back in 2018.  He arrived in Hong Kong for the second time around October 2020.  Prior to his second arrival, he went to mainland China illegally.

11.He is a Form 8 holder.

12.He has a clear record in Hong Kong.

Mitigation

13.With regard to the sentence for the offence, Defence counsel Mr McCoy urged the court to consider the following factors: (i)  the victim did not suffer any injury or loss of property; (ii)  the offence was not premeditated; (iii)  the weapon was picked up by the defendant fortuitously; (iv)  the weapon was a fruit knife; (v)  the knife was brandished, not used; (vi)  little to no violence was used by the defendant; (vii)  the offence was committed as an isolated act, out of a desperate need for money; (viii)  the defendant has been co-operative with the law enforcement agencies; (ix)  the defendant has a clear record, and (x)  shortly after he was remanded in custody, the defendant’s urine tested negative for all substances.

14.Citing Mo Kwong Sang v The Queen[1] and referring to HKSAR v Man Chuen Leuk[2], Mr McCoy submitted that a starting point in the vicinity of 5 years would be about right.

15.With regard to the question of enhancement by reason of the defendant being a Form 8 holder, having drawn the court’s attention to HKSAR v Shah Syed Arif[3] and HKSAR v Singh Gursevak[4], defence counsel submitted that while robbery is a serious offence, due to the unplanned nature of the offence, the minimal violence used, its little impact on the victim, and its negligible impact on the reputation of Hong Kong, the length of enhancement should be not more than 6 months.

Sentencing considerations

16.The starting point after trial for an armed robbery in which a knife or other dangerous weapon was displayed to the victim is normally 5 years imprisonment[5].

17.While I accept that little physical violence was used in the course of the offence, pointing a knife, albeit a fruit knife, at the victim was clearly a threat of violence which must have been a frightful experience for an ordinary citizen like Yip.

18.Fortunately for the victim, she suffered no property loss or physical injury.

19.I have some reservations about the truth of the defendant’s claim that he had picked up the fruit knife from a rubbish bin.  However, there being nothing in the Summary of Facts to suggest otherwise, I will not treat the offence as a planned or premeditated one.

20.Although the defendant is guilty of attempted robbery, as Mr McCoy rightly admitted, Mo Kwong Sang has since been consistently applied by the courts to cases of armed attempted robbery.

21.But for Yip raising a hue and cry and the timely intervention of MP1 and MP2, the defendant would most probably have completed what he had set out to do to Yip, namely rob her.

22.Given the facts of this case, I see no reason to adopt a starting point which is lower than that for a completed offence. I consider 5 years imprisonment to be a suitable starting point for the offence to which the defendant pleaded guilty.

23.The defendant being a Form 8 holder is an aggravating feature which calls for an enhancement of the sentence.  Guidance was provided by the Court of Appeal in HKSAR v Singh Gursevak[6]in considering the extent of the enhancement.

24.Attempted robbery is no doubt a serious crime.  Although the victim was not injured, the pointing of a knife at her, the grabbing of her hand coupled with the declaration of “Robbery” when she was waiting for a bus slightly over two hours from midnight must have been a scary experience for her.  The attempted street robbery perpetrated by the defendant must have left those working or living in the neighbourhood with a sense of unease and insecurity, especially for those who need to be out on the street at night.  The robbing of people on the street at knifepoint will certainly tarnish Hong Kong’s reputation as a safe and orderly world class city.

25.In the circumstances of this case, I consider it appropriate to enhance the sentence by 7 1/2 months, giving rise to a total of 5 years 7 1/2 months as the starting point.  I consider this total sentence to be a just and balanced one.

26.The defendant will receive a one-third discount for his timely plea, which is the only effective mitigating factor.  The sentence after discount is 45 months imprisonment.