HKSAR v. Chung King Ming

DCCC1435/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1435 OF 2009

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Reasons for Sentence

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1. Defendant you appeared before me this morning and pleaded guilty to three charges. 

2. The first two charges are the same, they are robbery charges, contrary to section 10 of the Theft Ordinance, whereas the third charge is one of going equipped for stealing, contrary to section 27(1) of the Theft Ordinance.

Facts 

3. According to the facts which you have admitted this morning, the victims of both charges are female and, in relation to Charge 1, she was an elderly woman aged 78. 

4. In particular, in the case of Charge 1, the robbery took place inside the common part of a corridor which was just outside the lift on the 12th floor of the building, and in the case of Charge 2, it took place outside the ground floor of a building.  Both buildings were situated in Yuen Long, New Territories. 

5. The modus operandi of both robbery cases are very similar.  It took place in the evening and the time gap between the two robberies was in the region of five days.  In each case you suddenly arm locked the victim from behind and wiped the pepper powder onto the victims’ eyes and then  you snatched the necklace of both victims from behind and fled.

6. The first victim, the elderly woman, suffered a tenderness on her nose after the incident, whereas the victim in relation to Charge 2 was diagnosed to have sustained conjunctival injection (redness).  

7. You were caught nearly one month later after the commission of Charge 2 on 2 November 2009 when you were trying to commit a further robbery. 

8. The police constable patrolling Yuen Long at that time spotted you acting furtively and therefore put you under observation. 

9. You were seen entering a grocery shop and bought a bottle of pepper powder, then you were seen opening the bottle and pour the pepper powder into a plastic bag and place it into the left front pocket of your pants.  You then hung around in a furtive manner and you were found to follow some unaccompanied females from behind.

10. At about 7.05 pm on the same day, the policeman finally intercepted you outside the building in Yuen Long and found on your person a plastic bag containing the pepper powder.  In response to the enquiry from the policeman, you admitted under caution that you planned to use the bag of pepper to commit a robbery.  You were then arrested and under caution you further admitted that you were the perpetrator of Charge 1 and 2.

11. In the subsequent video-recorded interviews, you freely admitted that  you followed some unaccompanied females on the day when you were arrested and you planned to rob them by wiping yet again the pepper powder on their eyes.

12. You also admitted to the police the robbery in relation to Charge 1 and Charge 2.  You said that you have sold the necklaces snatched from these two ladies for the price of $3,100 as well as $2,000 respectively.

Record   

13. You are now aged 45 and you have altogether appeared in court for 18 times in the past and mostly DD related with numerous possession as well as trafficking in DD charges.

14. The last conviction took place in 2008 and you were sentenced to 8 months’ imprisonment for the offence of possession of an obscene article for the purpose of publication.

15. You have only received an education up to Primary One.  Previously you worked as a transportation worker but at the time of the arrest you were unemployed.

16. In mitigation, your lawyer told me that you are a widower and your wife passed away some 2 years ago.  You have a 7-year-old son, now taken care of by your mother.  The reason for your commission of these offences before me is, as I was told, that after your wife passed away 2 years ago, you have no money to bury the ashes of your wife and then shortly before the offences, you were told that finally there was a place where you can place your wife’s ashes at Diamond Hill but then it costs about HK$60,000.  Since you were unemployed for more than six months and you have no savings, in order to find the money that was needed, you therefore foolishly committed the present offences.

17.      The strongest mitigation in your case is of course your plea of guilty.  According to your lawyer, you now realise the seriousness of the offences and you are very remorseful for what you have done and ask the court to be as lenient as possible.

18. During the mitigation your lawyer has also submitted for my consideration a number of authorities.  In particular, the famous authority for the offence of robbery is Mo Kwong Sang v The Queen [1981] HKLR 610, in which Roberts CJ has said that the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victims should be 5 years’ imprisonment.  The case further states that if such a robbery also involved an invasion of private premises (which includes domestic and the business premises and the common parts of the premises such as the lifts and staircases) then a further sentence of 1 year, that is a sentence of 6 years, would be appropriate.

19. Your lawyer also prayed in aid the case authority in R v Yau Kwok Tong [1987] 4 HKLR 782 where a 4 year sentence after trial for robberies where weapons has not been displayed was described again by Roberts CJ as “At the top end of the tariff”.  Your lawyer therefore seeks to argue that the 4  year starting point was already the top end of the range and therefore urged the court to not further enhance the sentence beyond that 4 years measure.

20. The public prosecutor in this case also referred me for consideration the case of HKSAR v Chan Sai Chiu [2001] 1 HKLRD 478.  There the Court of Appeal had said that for a robbery involving pepper throwing a starting point of 4 years was appropriate.  It was because in that case that the Defendant had bad previous records that finally he was sentenced to a period of 5 years.

21. Based on these authorities, in relation to Charge 1, I considered an initial starting point of 4 years is appropriate but since there is, as I see it, an aggregating feature in the case of Charge 1, namely the invasion of private premises - that is the robbery took place in a common part of a corridor in the 12th floor of the building right after the victim has stepped out from the lifts; secondly, the victim was an elderly woman of 78 years of age - for these two reasons I considered that a further 1 year should be added to the initial 4 years starting point making the proper sentence for this charge one of 5 years.

22. In relation to the submissions by your lawyers for the case involved no weapon that the proper ceiling for the sentence should be 4 years, I refer to the case of HKSAR v Chui Chi Hung [2007] 2 HKLRD 409.  There, a case which also concerns no displayed weapon, the court approved the starting point by the judge of 5 years’ imprisonment. In fact, in the case it has also referred to a number of other authorities where in the past the court did not interfere with the imposition of more than 4 years’ imprisonment.  So in relation to Charge 1, I would stick to 5 years as the appropriate sentence. 

23. In relation to Charge 2, in the absence of other aggravating factors, I will adopt the usual 4 years starting point.

24. In relation to Charge 3, your lawyer has submitted for my consideration the case of HKSAR v Pang Wing Pui, a Magistracy Appeal case, HCMA921/2008, where the court approved a starting point of 18 months’ imprisonment and urged the court to adopt a similar sentence here.

25. I agree with this submission and therefore in this charge, the starting point will also be 18 months.

26. You have pleaded guilty and therefore for all these three offences, you would receive a customary one third discount in each charge. 

27. In relation to Charge 1, after the deduction, the resulting sentence would be one of 40 months’ imprisonment.  For Charge 2, the resulting sentence after reduction would be 32 months’ imprisonment, and lastly, for Charge 3, the resulting sentence after deduction will be one of 12 months’ imprisonment. 

28. Next I turn on to consider the question of the totality.

29. All these three charges are committed at different times at different places, aiming at different victims, so in theory all the sentences can be run consecutively, but only because of the consideration of the principle of totality, I would therefore order that half of the sentence in relation to Charge 2, that is 16 months’ imprisonment, be run concurrently to the sentence that I pass in Charge 1. Making the sentence for both Charge 1 and Charge 2, the two robberies, one of 56 months’ imprisonment. For Charge 3, the 12 months’ imprisonment, I would order that the four months out of the 12 months be allowed to run concurrently to both Charge 1 and 2, so that only 8 months would be run consecutively to the 56 months, the total sentence of two robbery sentences. 

30. As a result, in relation to all three charges, all in all, the total you have to serve is a sentence of 64 months’ imprisonment.