HKSAR V Shehoza Vicent Kennedy and Another

DCCC 371/2022

[2023] HKDC 1112

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 371 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.D1 and D2 are convicted after trial for a charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap. 200.

2.PW1 wore a Rolex watch on his left wrist and put his arm on PW2’s shoulder. His watch was then exposed.

3.At about 3:40 am on 4 December 2021, when they walked down D’Aguilar Street, D1 and D2 walked up to them.

4.D1 was in front of PW1 while D2 was in front of PW2.

5.D1 said something to PW1 with acts of tapping on PW1’s chest lightly to distract PW1.  The tappings might or might not touched PW1’s chest.

6.Simultaneously, D2 grabbed PW1’s left wrist forcefully to the left, the clasp of the watch became unfastened, but was still hanging on PW1’s wrist.

7.The force of the pulling was so great that both PW1 and PW2 turned to the left.

8.PW2 described himself at 3 o’clock position when D2 was at 2:30 position.

9.Police were nearby for crowd control. PW1 shouted to the police for assistance.

10.D1 and D2 were arrested at the scene.

Criminal record

11.D1 has a clear record.

12.D2 has 2 records – one in 2019 for an offence of conspiracy to steal credit cards and was sentenced to 12 months’ imprisonment.

13.His last conviction was in 2022 for an offence of theft which was committed after the present offence.

Mitigation

14.D1 and D2 were born in Tanzania and they are now 36 and 27 respectively. They came to Hong Kong in 2015 and 2017. They are Form 8 recognizance holders. Their families are all in Tanzania.

Sentence

15.The maximum sentence for a charge of robbery is one of life imprisonment.

16.The defence in mitigation stated that:

(a)  The offence was committed in a public place with a lot of pedestrians near-by;

(b)  There was one big force of pulling of PW1’s wrist;

(c)  The value of the watch was HK$85,800.00;

(d)  PW1 did not suffer any loss;

(e)  No one was injured;

(f)  No weapon was displayed.

17.On this point of no weapon was used, the defence said that the usual sentence of 5 years in the case of Mo Kwong Sang v The Queen [1981] HKLR 610 for armed robbery does not apply.

18.The defence went on to say that according to the case of HKSAR v Ting Chiu and another [2003] HKLRD 378 that for unarmed robbery, the sentence should be lowered than the normal sentence for armed robbery of the kind envisaged in Mo Kwong Sang.

19.In the judgement of Ting Chiu, the Court said that the fact that the robbery involved more than one culprit was an aggravating factor. The Court considered that the starting point of 4 years’ imprisonment was appropriate.

20.The defence also relied on the authority of HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563 that the victim was pushed from behind while an iPhone was snatched. Both appellants in Ku Kwok Wai had clear record.  The starting point of 3 years and 3 months was upheld.

21.The defence accepted that there are aggravating factors in the present case: -

(a)  D1 and D2 are Form 8 holders;

(b)  The offence was committed by 2 defendants.

22.Having considered all the facts and mitigation before me, I adopt a starting point of 3 years and 3 months, I also enhance the sentence by 6 months for the aggravating factors.

23.The total sentence arrived at 3 years and 9 months.

24.Both D1 and D2 are convicted after trial, I order each defendant to serve a sentence of 3 years and 9 months’ imprisonment.