HKSAR v. Sin Chun Tat

DCCC420/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 420 OF 2009

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Reasons for Sentence

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1.The defendant has been convicted on his plea of one charge of robbery committed on 15 March 2007.  The two victims were chatting at a football field in the very early hours of the morning in question when the defendant and his friend Ho Ka-yiu approached the two victims and Ho, who was holding a 6-inch fruit knife at the time declared, “This is a robbery.  Take all your things out now.  Otherwise I will stab you.” 

2.As a result of the threat the victims did take out their properties as particularised in the charge, including two mobile phones, a wallet and various identification documents worth altogether about $10,800, handed them over to the defendant, where after both the defendant and Ho fled.

3.Ho was apprehended at the Lok Ma Chau crossing point on 3 May 2007.  The defendant was only apprehended on 23 February this year, also at the Lok Ma Chau checkpoint when he entered Hong Kong from Mainland China.

4.The defendant is 27 years of age and he has a very poor record including previous convictions for robbery in 1994, 3 counts of robbery in 2000 and then 5 counts of robbery on 26 August 2003, for which he was sentenced to a total of approximately 3 years’ imprisonment.  He also had previous convictions for theft, burglary, going equipped for stealing and handling stolen goods.

5.The defendant has stated through his solicitor today that he did not know that Ho was in possession of a knife when he agreed to take part in this robbery.  That would be surprising, I must say, particularly in view of the fact that Ho was apparently a friend of the defendant at that time, but I shall accept it for the purposes of sentence.

6.It does not avail the defendant much because the fact is that he continued to take part in this robbery, while Ho, in his presence, displayed the 6-inch fruit knife and threatened to stab the victims if they did not hand over their property, it was to the defendant that the victims then handed over their items of property.

7.I note that he did not tell the full truth even in the second record of interview.  However he did admit that he and Ho had decided to rob that night because both of them had no money at the time.

8.The defendant and Ho then both fled to the mainland.  Ho was apprehended while doing so, but the defendant has been living on the mainland between the date of the offence in March 2007 and 23 February this year when he returned to Hong Kong, apparently to visit his family.

9.I am informed that the defendant worked during this time as a fashion shop owner and was quite successful, which I accept for present purposes.

10.The defendant must have known at the time he embarked on this offence together with Ho that robbery is considered to be a very serious offence by the courts.

11.The court of appeal suggested guidelines for sentencing for armed robbery in Mo Kwong Sang vs the Queen [1981] HKLR 610.  The Court of Appeal stated that the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon, excluding firearms, which he displayed to his victim should be 5 years’ imprisonment.  The court went on to list various possible aggravating features which would justify adopting a higher starting point than 5 years, including the fact that more than one person took part in the robbery, and another aggravating feature being where threats were made to the victims.

12.This was a joint enterprise between the defendant and Ho to rob these victims, and the defendant is responsible in law for everything that was done by Ho within the scope of that joint enterprise, including the displaying of the knife and threats to stab the victims if they did not hand over their property.  It is nonetheless relevant to note, for the purposes of sentence the roles played by the respective robbers and I do accept for present purposes that the defendant played a somewhat secondary role to that played by Ho, who carried the knife, displayed it and actually uttered the threat.  That fact perhaps more or less neutralises the otherwise aggravating features that more than one person took part in the robbery and also that threats were made to stab the victims.  No actual violence was used and no injuries of any sort inflicted on the victims.  The aggravating feature that most concerns me is the multiplicity of previous convictions for robbery and other relevant offences which the defendant has.

13.In all the circumstances, I have adopted a starting point of 5½ years imprisonment after trial, which represents only a modest enhancement of the normal 5-year starting point considering how bad the defendant’s record of similar offences is.  The defendant has now admitted all the facts and clearly is taking responsibility for what he did, and for that I afford him the full one-third discount for his plea of guilty and co-operation, notwithstanding that he continued not to tell the full truth in his records of interview.  Applying one-third discount to the starting point of 5½ years discounts the starting point to 44 months’ imprisonment.

14.I am accepting that the defendant is now genuinely remorseful and determined to make a fresh start.  This is confirmed by the chaplain in his letter to the court dated 6 May 2009.  He has visited the defendant as part of his pastoral duties and he states that the defendant has expressed full remorse and is actively seeking ways to put himself on the correct path.  This remorse and determination to turn over a new leaf should in my view be encouraged, and I further discount the sentence by 3 months’ imprisonment on that account, and sentence the defendant to a total of 41 months' imprisonment.