HKSAR v. Vu Trong-huynh

DCCC 616/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 616 OF 2009

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210 and one charge of remaining in Hong Kong without authority having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Chapter 115.

2.In summary on the 11th May at around 19:50 Madam Lam and her daughter, aged two and a half, were walking along Boundary Street when suddenly the defendant pushed Madam Lam to the ground and snatched her handbag. The defendant then fled along Tung Choi Street. Mr Yip, a passer by, on hearing Madam Lam shout for help, chased after the defendant and together with two off duty police officers, was able to subdue the defendant and recover Madam Lam’s handbag. Mr Yip should be commended for his actions in helping to apprehend the robber.

3.Under caution the defendant admitted committing the robbery because he wanted money to buy food having sneaked into Hong Kong from Vietnam by speedboat four days earlier. Since arriving in Hong Kong the defendant said he had wandered around during the daytime and slept under a bridge at night.

4.In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Wong together with the letter submitted by the defendant. I take into account the defendant came to Hong Kong hoping to find work to support his family in Vietnam and that he committed robbery because he was hungry and had no money to buy food.

Robbery

5.The defendant was found in possession of a folding knife. Although this was in his hand at the time of apprehension there is no evidence that the defendant used or displayed the knife in the course of the robbery. I therefore proceed to sentence the defendant on the basis this was an unarmed robbery.

6.The starting point for unarmed robbery is generally no more than 4 years imprisonment, see for example HKSAR v TING Chiu [2003] 3 HKLRD 378 as applied in HKSAR v LAM Ka-hung CACC 294/2003. I have also considered the cases submitted by Mr Wong namely, HKSAR v ON ling CACC 386/2004; HKSAR v CHAN Sin-leung CACC 48/2006 and HKSAR v TSANG Wai-ming CACC 288/2006. As Mr Wong accepts each case is however to be decided upon its own particular facts and circumstances.

7.I do not accept this is a case akin to snatching for which a theft charge could have been laid. Whilst minimal violence was used Madam Lam was nevertheless pushed to the ground and her handbag snatched. Furthermore the defendant chose a vulnerable target. Madam Lam having to look after a young child, aged two and a half, was most unlikely to resist or put up a struggle or run after the defendant leaving her daughter behind. I am satisfied the proper starting point after trial is 4 years imprisonment. Giving the defendant full credit for his plea of guilty he is sentenced to 2 years and 8 months imprisonment.

Illegally remaining in Hong Kong

8.In R v. SO Man-king [1989] 1 HKLR 142 the Court of Appeal held that allowing for a plea of guilty a sentence of 15 months imprisonment should be used as the basic guideline unless there are strong humanitarian considerations to depart therefrom. Whilst I sympathise with the defendant as to his poor family circumstances in Vietnam I do not regard this as a strong humanitarian ground whereby I can depart from the guideline. The defendant is sentenced to 15 months imprisonment.

9.Unlawfully remaining is separate and distinct from the robbery charge (see HKSAR v. TONG Fuk-sing [1999] 3 HKLRD 710). I order the sentences to be served consecutive. I am satisfied a total sentence of 3 years and 11 months imprisonment properly reflects the defendant’s criminal culpability on these two charges.