COURT: The defendant had pleaded guilty in the Magistrates’ Court to one count of robbery and one count of theft and has been committed to this court for sentence.
In relation to the robbery charge, the facts were that in the early morning of 10 November 2021 at about 3.47 am, the victim was walking by herself in an alley in Oi Tung Estate, Shau Kei Wan, when she was tapped on the shoulder from behind by the defendant. The victim turned around and saw that the defendant held a cutter with an exposed blade and demanded money from her. The victim complied and handed $90 worth of banknotes to the defendant. Then the defendant demanded that the victim give him her ATM card and password and the victim complied.
After that robbery, the defendant then took the victim to a playground nearby and tied her hands to the fence with duct tapes and then put a duct tape on the victim’s mouth before leaving the playground. Subsequently, the victim broke free and reported this robbery to the security guard.
Between 3.52 am to 3.54 am on 10 November 2021, the defendant used the victim’s ATM card and made two cash withdrawals, each in the amount of $20,000 and thus that is the subject matter of the 2nd charge that the defendant stole $40,000 cash which was the property of the victim. The victim called the bank to deactivate the ATM card at 4.04 am but learned that $40,000 had been withdrawn, so she reported the matter to the police.
The defendant was arrested on 11 November and under caution, the defendant frankly admitted that he did rob a woman on the day of the robbery with a cutter. And upon a body search, cash of about $7,351.50 was found on him and seized.
The defendant was subsequently interviewed on video and he gave an account of why he committed the crime, because he said he was in debt and he had picked up a pair of white gloves and a roll of brown duct tape in order to commit the robbery. And he gave an account of following the victim into an alley and robbing her and then using the ATM card and the password to obtain two withdrawals of $20,000 each from her account. He subsequently threw away the victim’s ATM card.
So the facts, as admitted, are serious because citizens walking home or walking to work by themselves should not be subject to the scary experience that the victim encountered. It is of course to the defendant’s credit that he admitted the offences, saving her the trauma of coming to court to relive the very frightening experience again.
The defendant is aged 39. He has one previous conviction for theft, shoplifting, for which he was fined and that was back in 2011. It is now a spent conviction. So I will treat him as a person with a clear record.
The mitigation advanced by Mr Cheung on his behalf is that the defendant lives with his mother and that he was a security guard before the offence and was making a salary of $17,000 a month but because he had financial difficulties and had accumulated debt, out of desperation he committed the present offences.
The defendant has also written a letter to the court detailing how he feels very remorseful and that he was co-operative when arrested and so it is an indication of his remorse. I am informed also by Mr Cheung, he has written a letter apologising to the victim which will be passed to the police officers in the case. But whether the victim would want to read the letter or accept the letter is a matter for her.
Now, as correctly identified by Mr Cheung, the sentence for robbery, the guidelines are laid down in the case of Mo Kwong Sang in 1981 and there were certain factors which the Court of Appeal says a sentencing judge should look out for. Now, in this case, of course the defendant was acting alone and the cutter being a dangerous weapon was displayed but was not used to injure the victim. And the taking away of the victim’s ATM card and password in the case of R v Sun Sheung Chung in 1993, the Court of Appeal observed that it was a considerable aggravation and I agree.
Now, the aggravating factors in this case is the fact that the victim was tied up by duct tape in a playground and she was gagged with duct tape on her mouth.
So having considered all these factors and the mitigation advanced on his behalf, I have decided the sentence for the robbery as follows. I would adopt a starting point of 5 years’ imprisonment, the tying up of the victim and gagging her with a duct tape, I would add 2 years. And for the stealing of the ATM card with the password which is considered to be a considerable aggravation, I would add another 1½ years, making it 8½ years.
I will give the defendant the full one-third discount which brings the sentence down to 5 years and 8 months.
Now, in relation to the theft charge, $40,000 was stolen from the victim’s account. It is a considerable amount of money. I would consider that an appropriate sentence in that case would be 18 months sentence on the starting point and giving him the one-third discount would reduce it to 12 months’ imprisonment.
Now, I have to consider the totality principle and as suggested by Mr Cheung, part of the sentence in the 2nd charge should be consecutive to the 1st charge, and so I will make 6 months of the second sentence consecutive to the sentence in the 1st charge and so the defendant goes to prison for 6 years and 2 months.