HKSAR v. Yung Wai Kin

DCCC 418/2022

[2023] HKDC 1090

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 418 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of assault with intend to rob.

2.Upon application by the prosecution, Charge 1 is now ordered to be left on the court’s file and not to be proceeded with without the leave of the court.

Summary of facts of Charge 2

3.At about 0:30 am on 19 September 2021, the defendant showed up at 7-Eleven Convenience Store in Houston Centre in Tsim Sha Tsui.  PW1 was the only staff in the Store at that time.

4.The defendant demanded PW1 to deposit a credit of HK$10,000 to his mobile phone.  The defendant then took out a knife and pointed it towards the chest of PW1.

5.PW1 told the defendant that the amount could not exceed HK$5,000 and PW1 did not know how to perform it.  The defendant thus operated the cash register at the cashier of the Store and performed the deposit of credit by himself.

6.The defendant then left the Store.

7.Record showed that HK$5,000 was credited to a WeChat Pay account.

8.Record also showed that two separate $500 have been transferred with FPS function on the same day at 0:49 am and 0.51 am respectively.

9.Ms Leung confirmed that she met the defendant at about 0:30 am on 19 September 2021 in Tsim Sha Tsui.  The defendant asked Leung’s friend to help by cashing HK$4,000 via her HSB and HSBC bank accounts.  Her friend agreed and did so accordingly. 

10.The defendant was arrested by the Police on 22 September 2021. 

11.Under caution, the defendant said, “Ah Sir, I do not have money.  So I went to rob”. 

12.In a video-recorded interview, the defendant admitted committing the offence of Charge 2.

13.The WeChat Account was registered by the defendant without the knowledge of a Mr. Wong.  However, the defendant could fully operate the WeChat Account.

Criminal Record

14.The defendant has a long list of criminal record since 2009 to 2021. He has 5 appearances in court with 13 convictions.

15.His first conviction in 2009 was an offence of Robbery.  Other offences are obtaining properties by deception, theft, gambling. fraud, conspiracy to defraud, making a false declaration.

16.His last conviction was in 2021 for an offence of trafficking dangerous drugs.  He was sentenced to 4 months’ imprisonment and was released from prison on 24 May 2021.

Background

17.He is now 33 years old.  He was unemployed.  In his mitigating letter, he is now very remorseful for committing the present offence as he was in debts to his friend for some $10,000.  His mother is not well and he wishes to take up the responsibilities to look after her.

Sentence

18.The maximum sentence for charge 2 is life imprisonment.

19.The defence in mitigation said that: -

(a)  the defendant had no intention to harm PW1;

(b)  PW1 did not suffer any injury;

(c)  he did not raise his voice in an aggressive manner during the time of robbery;

(d)  the offence was carried out in any unsophisticated manner.

20.There is no sentencing guideline for charge 2.  As discussed during mitigation, according to the case of Mo Kwong Sang v The Queen, [1981] HKLR 610 for armed robbery, the sentence would be 5 years.

21.This case is akin to armed robbery.  The prosecution informed me that due to technical issue that no actual cash was stolen at the material time, therefore the defendant was charged under section 10 (2)  instead of section 10 (1)  of the Theft Ordinance, Cap 210.

22.There are 2 aggravating factors in the present case: -

(a)  The offence was committed in a 7-11 store which operated its business around the clock and have cash in the store, therefore is an easy target for robbery. The staff in the store was more vulnerable as there were less customers in the middle of night. As such, a deterrent sentence is called for.

(b)  The defendant had a long list of criminal records and he committed the present offence only 4 months after he was released from prison.

23.I consider that the starting point should be enhanced by 6 months.  It arrives at 5 years 6 months.  The sentence is reduced to 3 years 8 months after 1/3 discount.