HKSAR v. Chen Guoxiong

DCCC 333/2021

[2021] HKDC 1094

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 333 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of attempted robbery.  At around 3:20 am on 26 December 2020, the defendant entered a 7-11 convenience store in Tsuen Wan.  He pointed his right hand at PW1 and said “robbery, bring $500” here.

2.When PWI’s colleague came out to the cashier counter, PW1 told her colleague the defendant wanted to rob.  The defendant confirmed he was there to rob.

3.PW1 activated the alarm while the defendant made a report to the police, waiting for the police’s arrival. 

4.Under caution, the defendant admitted he was out of job, had no cash, felt hungry and he wanted to rob to get some cash for food.  He brought no weapon, acted along and did not want to hurt anybody.

Criminal record

5.The defendant had a common assault conviction record in April 2021.  That was after his arrest of the present case.  Therefore, he has a clear record at the time of his arrest.

Mitigation

6.The defendant is now 35 years of age.  He married in 2011 with 2 children aged 10 and 4 respectively.  He came to Hong Kong for on a single entry permit in 2017.  He separated from his wife in 2019.  He contributed $7,000 maintenance to his wife.

7.He struggled to adjust to the pace of Hong Kong life style and often changed jobs.  His last job was a kitchen assistance in a Japanese restaurant earned about 13,500 per month from 2019 to 2020.

8.At the time of offence, he was out of employment for 2 months.

9.The defendant is regretted for the commission of the present offence.

10.When he appeared in the Magistracy in March 2021, 2 psychiatric reports were called for.  The defendant suffered from depression with suicidal thoughts.  He also suffered from bipolar affective disorder, manic episode. The doctors recommended inpatient psychiatric treatment for 3 months.

11.He has been an inpatient in Siu Lam since March 2021.  At the time of commission of the offence, the defendant had mental health issue.  However, he was fully aware of what he did was wrong.

12.The defence referred to the case of HKSAR v Chiu Peng[1]that a proper discount of sentence was appropriated for a defendant who suffered from mental illness which played a part in the commission of the offence.

13.As to financial hardship, the defence referred to the case of HKSAR v Kwok Cheuk Man[2] that the Court of Appeal allowed a 10 month discount on sentence to reflect the circumstances of grave financial hardship.

Sentence

14.This is a case of attempted robbery where no weapons was displayed at the time of the commission of the offence.

15.The starting point for an armed robbery was 5 years as stated in the Mo Kwong-sang[3].

16.However, in HKSAR v Ting Chiu and others[4], the Court of Appeal stated that for unarm robbery, the starting point should be lower.

17.In HKSAR v Ku Kwok Wai[5], it involved an unarmed robbery of an i-phone by 2 robbers, the victims suffered no injuries, the Court of Appeal upheld a sentence of a starting point from 3 years and 3 months.

18.In the present case, the defendant had been out of job for 2 months, he had no money to buy food and he was hungry.  He was also suffered from mental illness.

19.It was 3:20 am, early in the morning when the street was quiet and most people were asleep.  The victim in the convenient store was subjected to fear when the defendant declared robbery.  She pressed the alarm to seek the assistance of the police as she was in fear that the defendant might cause her physical harm.

20.As said in the case of Kwok Cheuk Man that convenient store are susceptible to robbery and had to be protected.  A deterrent sentence was warranted for those who robbed these places.  Nonetheless, the Court of Appeal reduced the sentence on compassionate ground.  

21.In the present case, there is no evidence to suggest that the defendant was subjected to any pressure from loan sharks.  He was just unemployed.  I refused to reduce further sentence on this point of financial hardship.

22.In passing sentence, I do bear in mind that the offence was carried out by the defendant alone, he did not carry any weapon.  When the defendant knew that police was called, he also called the police to surrender himself by waiting at the doorstep of the store.

23.The store did not suffer any loss, the victim was not hurt, the defendant was suffering from mental illness at the material time.  In such circumstances, I consider that a starting point of 3 years is sufficient to reflect the gravity of the offence.  I reduce to 2 years after 1/3 discount.

24.The defendant is ordered to serve a period of 2 years imprisonment.