HKSAR v. Yeung Ming Kit

DCCC 363/2023

[2024] HKDC 439

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 363 OF 2023

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REASONS FOR SENTENCE

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1.Mr Yeung pleaded guilty before me to 3 charges of Robbery, contrary to section 10(1)  and (2)  of the Theft Ordinance, Cap 210.

2.Particulars of Charge 1 are that he, on 18 November 2021, at 7-Eleven Convenience Store, Shop No 101, Level 1, Castello, No 69 Siu Lek Yuen Road, Shatin, New Territories, in Hong Kong, robbed Wong Wun Ha of cash of $1,238.5 Hong Kong currency and one packet of cigarettes.

3.Particulars of Charge 2 are that he, on 31 December 2022, at 7-Eleven Convenience Store, Portion of Shop Nos 12-13, Ground Floor, Greenwood Garden, Nos 7-11 Sha Kok Street, Shatin, New Territories, in Hong Kong, robbed Luo Meidi of one packet of candies and cash of $2,008.5 Hong Kong currency.

4.Particulars of Charge 3 are that he, on 5 January 2023, at 7-Eleven Convenience Store, Shop G110, Ground Floor, Yiu On Shopping Centre, Yiu On Estate, Ma On Shan, New Territories, in Hong Kong, robbed VU Thi Quyen of cash of $3,610 Hong Kong currency and one can of beer.

Facts admitted by Mr Yeung

Charge 1

5.On 18 November 2021, at about 3:25 am, Mr Yeung, wearing a white face-mask, black jacket with hat, covered his neck area with a white T-shirt and entered the 7-Eleven Convenience Store situated at Castello, Siu Lek Yuen Road, Shatin (Shop 1).  Inside Shop 1, Mr Yeung approached the cashier counter purporting to buy a packet of cigarettes.

6.When the shop assistant Ms Wong (PW1)  opened the cashier machine, Mr Yeung jumped over the cashier counter and forcefully took away the cash in the cash tray.  After taking the cash, he walked away, then turned around again, ran towards the counter and jumped over the counter.  PW1 was scared such that she had to move away to escape and let Mr Yeung pick up the cash on the floor. Mr Yeung then left with the money and the packet of cigarettes.

7.The stolen properties were cash of $1,238.50 and one packet of cigarettes.  The cashier machine was damaged which required a repair fee of $800.  Case was reported.

Charge 2

8.On 31 December 2022, at about 3 am, Mr Yeung, wearing a white face-mask, black jacket with hat, first parked his silver/white AUDI private car near the 7-Eleven Convenience Store situated at Greenwood Garden, Sha Kok Street, Shatin (Shop 2).  He then entered Shop 2 and approached the cashier counter purporting to buy some candies.

9.When the shop assistant Ms Luo (PW2)  opened the cashier machine, Mr Yeung forcefully pushed away PW2 and moved his hand towards the cash tray.  Mr Yeung jumped over the counter such that PW2 moved away for safety.  Mr Yeung ransacked the cash tray and then left.  He then boarded his car and drove away.

10.The stolen properties were one packet of candies and cash of $2,008.50. Case was reported.

Charge 3

11.On 5 January 2023, at about 4:40 am, Mr Yeung was dressed in a very similar way to the incident subject of Charge 2.  He entered the 7-Eleven Convenience Store situated at Yiu On Estate, Ma On Shan (Shop 3)  and approached the cashier counter purporting to buy a can of beer.  When the shop assistant Ms VU (PW3)  opened the cashier machine, Mr Yeung forcefully stretched his hand into the cash tray and ransacked it.  A brief struggle ensued between Mr Yeung and PW3.  Mr Yeung then left taking away the cash and a can of beer.

12.The stolen properties were cash of $3,610 and one can of beer.  PW3 suffered a 3-cm abrasion on her right ring finger.  Case was reported.

Arrest and caution

13.Mr Yeung was arrested outside his place of abode on 6 January 2023 for the incidents subject of the three charges.

14.Under caution, Mr Yeung said, “I had no money and no way out; as such, I robbed monies in these three 7-Elevens.” He further admitted that:-

(a)  He pretended to buy things so that the cashier staff would open the cashier machine; at that juncture, he would jump over the cashier counter to steal the monies in the machines;

(b)  He had used the same modus operandi for 3 times;

(c)  He had spent all of the stolen monies on meals and buying things; and

(d)  Cash of $100 from the stolen monies was left in his wallet.

15.In subsequent VRIs, he admitted he drove to Shop 2 and that he has spent the monies on settling gambling debts.

16.A fingerprint lifted from the cashier machine in Shop 2 matched that of Mr Yeung’s.

Criminal record

17.Mr Yeung has three previous convictions including two for theft offence recorded in May 2023 (post the present offences).

Antecedents

18.Mr Yeung is aged 28 (27 at the time of the last of the present offences), educated to F5 level.  His last employment was as a goods vehicle driver between 2021 and 2023.  Mr Yeung lived with his parents (around 60 years old)  in public housing in Ma On Shan.

Mitigation

19.Ms Christine Leung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Yeung.  The following is a summary of the mitigation submissions.

20.At the time of the offences, Mr Yeung was unemployed and relied on his family for financial support.  For one year, between December 2021 and December 2022, he worked as a logistic lorry driver, earning a monthly income of $23,000. However, he was unable to extricate from his gambling addiction, resulting in the loss of his stable job and the incurring of heavy debts.  Mr Yeung’s father and two elder brothers had to shoulder his gambling debts, making the whole family as well as other relatives suffer under grave financial pressure.

21.At the time of the present offences, Mr Yeung had only one criminal conviction, which was for common assault for which he was sentenced to probation.  The present offences were not committed whilst on bail.  Ms Leung acknowledged that the two theft convictions recorded post the present offences were related to offences committed only 2 days before the second robbery in the present case.

22.Mr Yeung deeply regrets his action and has made full and frank confessions after his arrest for the third offence.  He has provided detailed information about each crime and has fully cooperated with the authorities.

23.The relevant three witnesses of the three offences were not able to identify Mr Yeung.  The video footage did not clearly capture his appearance.  However, because Mr Yeung believed he should take responsibility for his misconduct, he adopted a cooperative attitude and chose to confess all his past wrongdoings.

24.During remand, Mr Yeung’s elderly parents made the arduous journey to visit him in Stanley Prison without any complaints.  This made him realize how much his family meant to him.  He has determined to start a new life, quit gambling and work hard to repay their unfailing support.

25.Robbery is a serious offence, with a maximum penalty of life imprisonment.

26.In The Queen v Yau Kwok Tung [1987] HKLR 782, the Court of Appeal held that a sentence of 4 years is at the top end of the tariff for robberies where weapons were not displayed.

27.HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563 is another case involving a robbery without the display of weapons.  The two robbers snatched an iPhone from behind a 17-year-old girl who was on her own in the early morning.  The Court of Appeal upheld a sentence with a starting point of 3 years and 3 months.

28.In the present case, all three offences involve convenience stores.  In HKSAR v Lam Hoi, CACC 105/2016, the Court of Appeal stated that for robbery of convenience stores, the court can enhance the sentence to reflect for this aggravating factor.  However, the Court also stressed that the sentencing court can adjust the sentences to accord with the record, age or other personal circumstances of the defendant or the particular facts before it (see paras 53-55 of the judgment).  Moreover, Ms Leung submits that there is no evidence that the convenience stores in this case contained a large amount of cash.

29.Ms Leung emphasizes that Mr Yeung has chosen to confess to all the charges at a time when the police did not have much cogent evidence against him; that he even identified himself as the masked man from the three CCTV footages.  Ms Leung submits that his confession eased the task of evidence collection.

30.Mr Yeung committed the offences out of grave financial hardship and pressure.  In HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 698, the Court of Appeal held that a sentencing court has a discretion to impose a lighter sentence where the offence was committed by the force of circumstances.  The Court of Appeal allowed a 10-month discount on sentence to reflect the circumstances of grave financial hardship.  When queried by the court, Ms Leung conceded that the 10-month reduction was actually made for a basket of reasons and not solely for the grave financial hardship (see paras 30-33 of the judgment at 702 of the report[1]).

31.Ms Leung corrected her written mitigation by saying that one of the three victims was indeed injured after a struggle with Mr Yeung but submitted that the injury was not serious: PW3 suffered a 3-cm abrasion on her right ring finger.

32.Because of the above factors, Ms Leung urges the court to adopt a lower starting point of sentence.

33.Ms Leung acknowledges for the reason that the three offences were committed in different places and on different dates with different victims, consecutive sentences should in principle be imposed.  However, Ms Leung reminded the court to bear in mind the totality principle and exercise leniency and order a major part of the sentences to run concurrently.

34.Ms Leung submitted on behalf of Mr Yeung two mitigation letters in Chinese written respectively by Mr Yeung himself and his mother.  The contents generally are that Mr Yeung committed the offences out of greediness and recklessness; that he promises not to re-offend.  The letter writers asked for leniency so that Mr Yeung may return to society to lead a normal life.

Sentence

35.Robbery is a serious offence.  Furthermore, convenience stores that are open round the clock are susceptible to robberies and have to be protected.  A deterrent sentence is warranted for those who rob these places (see Kwok Cheuk Man, at 702, para 31[2], per Yeung JA, as Yeung VP then was).

36.Although the two thefts on the criminal record were committed by Mr Yeung two days prior to the second robbery in this case, he was not arrested for those thefts until after his arrest for the present case.  In other words, none of the robberies in this case was committed by Mr Yeung whilst on bail.

37.For each of the robbery charges, I adopt a starting point of 3½ years, taking into account the aggravating factor the fact that the places of crime were convenience stores.  Viewed globally, the mitigating factor that there was little evidence in relation to Charge 1 save and except Mr Yeung’s confession cancelled out with the aggravating factor that Mr Yeung caused PW3’s injury under Charge 3.

38.Mr Yeung pleaded guilty to the charges in a timely fashion.  He shall be entitled to the customary 1/3 discount in sentence.  There are no other mitigating factors of weight to justify another reduction in sentence.

39.The three offences though identical in type were committed in isolation one from the others.  Subject only to totality, the sentences in relation to the offences ought to be served wholly consecutively.

40.However, on an application of the totality principle, I can and will make part of the sentences run concurrently with each other.

(Mr Yeung, please stand)

41.On Charge 1, the sentence is 28 months’ imprisonment.

42.On Charge 2, the sentence is 28 months’ imprisonment.

43.On Charge 3, the sentence is 28 months’ imprisonment.

44.I order that 4 months of the sentence on Charge 2, and 4 months of the sentence on Charge 3, are each to run consecutively to the sentence on Charge 1. The aggregate sentence is therefore 36 months or 3 years’ imprisonment.