HKSAR v. So Ho Fai
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DCCC1248/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1248 OF 2008 ----------------------
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Before: H H Judge S. D’Almada Remedios Date: 5 February 2009 at 11.57 am Present: Ms Jasmine Ching, PP of the Department of Justice, for HKSAR
Offence: Theft, etc. (盜竊罪等罪項)
Reasons for Sentence
1. Defendant, you have pleaded guilty to four charges before this court. The charges were all committed on the same day, that is 16 October 2008, and all within the vicinity of Johnston Road and Fleming Road in Wanchai, Hong Kong. 2. The 1st charge is that of theft whereby you admitted stealing cash of $18 from Lee Yu-chung whom I shall refer to hereafter as the victim. The 2nd charge is that of claiming to be a member of a triad society, to which you claimed to be a member of the Wo Hop To Triad Society inside a 7-Eleven convenience store. 3. The 3rd and 4th charges are charges of robbery, to which you robbed on two separate occasions, firstly, the 3rd charge, cash of $23 from the victim, and shortly after that, a mobile phone belonging to the victim. 4. On 16 October 2008, at about 9.35 pm, the victim, Lee Yu-chung, aged 16, was playing video games at a games centre. At that time, he had placed 18 $1 coins on top of the video game machine. You suddenly approached him and took away the 18 $1 coins. The victim immediately asked you for the return of the coins, but you refused. A dispute then arose. You then asked the victim to go elsewhere to settle the matter. The victim complied, and you both went to the nearby 7-Eleven store. Whilst there, you told the victim to give you his waistbag. The victim did so. You then returned the waistbag to him, but you had taken the victim’s wallet out from the waistbag. You then took $23 cash from the victim’s wallet. 5. The victim tried to get his money back and had a struggle with you, but at this juncture, you told the victim that you were “Hop-to Bull Leung, you give me the money or not?” Feeling scared, the victim stopped struggling with you and you then returned the empty wallet of cash to the victim. You then asked the victim to go somewhere else. When you both reached the “3 Telecom store,” you then told the victim to surrender his mobile phone. The victim refused and struggled with you again. However, he was not able to stop you from taking his mobile phone, and you then left with the victim’s mobile phone. 6. A report was made to the police by the victim, and you were positively identified by the victim at an identification parade on 17 November 2008. Under caution, you stated, “Ah sir, give me a chance.” 7. “Hop To” means Wo Hop To which is an active triad society in Hong Kong. Mr Li, your solicitor, has made full mitigation on your behalf before me today. I have taken into consideration what he has had to say on your behalf. You are aged 33 and have 35 previous convictions, of these convictions, 19 of those are related to theft; one of those, similar, also of robbery in 1993; four, similar, to claiming to be a member of a triad society, and your last conviction was that of theft in December 2008, to which you were sentenced to 2 months’ imprisonment. 8. Mr Li has mitigated on your behalf in respect of the offences. All of those offences were committed on the same evening, and no weapon was carried, and there was no injury to the victim despite the struggles. He has submitted to the court that this is really a petty crime committed by you as the amount involved is small. The 1st charge of theft being of $18 and the robbery count of $23 and a mobile phone. He recognises that you do have a string of past similar criminal convictions, but he submits that in respect of the robbery count in 1993, that was committed some 16 years ago and that was the only similar offence. 9. I accept of course that the amounts involved are small, but the offences to which you have pleaded guilty to are very serious offences indeed. That is charges of robbery and claiming to be a member of a triad society. Those charges alone warrant immediate custodial sentences. On the face of it, it appears to me that you, being a slightly older man of age 33, had chosen a younger person of age 16 to commit these offences against. As Mr Li has stated, it appears to be an older man being a big bully, and your utterance of being a triad member clearly being an intimidating factor for the younger person to accede to your requests. 10. The robbery of itself is serious, but you also used the intimidating factor of being a triad member when challenged by the victim. I find this to be an aggravating factor. I have taken into account the principle of totality when sentencing you, and although there are these four offences that you have pleaded guilty to, they were of course committed within a very short period of time and against the same person. I of course recognise the fact that you have pleaded guilty and shown your remorse, and I will give you the full one-third discount for your plea. 11. On Charge 1, for the charge of theft, had you been convicted after trial, I would have taken a starting point of 6 months’ imprisonment. Given your plea of guilty, that term shall be reduced to 4 months’ imprisonment. On Charge 2, claiming to be a member of a triad society, had you been convicted after trial, a starting point of 12 months’ imprisonment would have been appropriate. And giving you the full discount, I reduce that term to 8 months’ imprisonment. 12. For the charges of robbery, on Charges 3 and 4, I take a starting point of 4 years’ imprisonment. And giving you full credit for your plea of guilty, I reduce those terms of 4 years’ imprisonment to one of 2 years 8 months’ imprisonment. 13. I must consider the principle of totality here, and I consider a total term of 3 years’ imprisonment to be appropriate. In the circumstances, I shall order all sentences to run concurrent to each other save that 4 months of Charge 2 will run consecutive to Charge 3, which makes a total term of 3 years’ imprisonment. You are so sentenced to 3 years’ imprisonment.
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