HKSAR v. Wang Xinling

DCCC775/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.775 OF 2009

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Reasons for Sentence

1.The defendant faces one charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200. It is alleged that the defendant on 19^th June 2009, near lamp post number FA2085, Tsun Wen Road outside Hing Ping House, Tai Hing Estate, Tuen Mun, attempted to rob Ms. Yeung Yuk Kit.

2.The defendant pleaded guilty to the charge, admitted to the summary of facts and was duly convicted.

Summary of facts

3.At around 01:05am on 19^th June 2009, the victim, PW1, (female, 22 years old) was walking home alone on Tsun Wen Road in Kin Sang Estate in Tuen Mun. There were not many pedestrians on the street. A male, later identified as the defendant, approached her from the opposite direction outside Tai Sang House, staring at her.

4.PW1 mistakenly thought at first that the male was a friend of hers. When the male was 2 meters away from PW1, she took a closer look and realized that he was not her friend after all and they walked past each other. PW1 saw that the male was about 23 years old, 165 to 170cm tall, short haired, naked from the waist up, wearing green shorts and holding a black T-shirt in his hand.

5.PW1 continued walking and was talking on the phone to her friend when, at around 01:11am, someone suddenly smothered her from behind with a black T-shirt on Tsun Wen Road outside Hing Ping House of Tai Hing Estate. With the T-shirt wrapped around her neck, PW1 was dragged to the entrance of Hing Ping House. PW1 struggled and raised hue but was pushed onto the ground.

6.While sitting on the ground, PW1 faced the assailant and recognized him to be the male whom she had mistakenly thought was her friend a few minutes ago, still naked from the waist up. The defendant pulled the strap of PW1’s handbag attempting to snatch it from PW1’s hand. PW1 resisted and held on tight to her handbag. Failing to snatch the handbag, the defendant fled in the direction of Chelsea Heights. PW1 sustained a 3 cm diameter abrasion wound over her right calf as a result of the struggle.

7.The case was reported to police. At 01:16am, uniformed police officer PW2 and his party arrived at the crime scene. PW1 and the police scouted the vicinity in a police vehicle. PW1 spotted the defendant on Tsun Wen Road near Shek Pai Tau Road at around 01:19am. The defendant was in green shorts and wore a black T-shirt which was rolled up to his chest area. PW1 identified the defendant to the police as the male who had tried to rob her. The police intercepted the defendant.

8.When being approached by the police, the defendant immediately rolled down his T-shirt to cover his waist area. He appeared to be nervous and was out of breath. The defendant was then arrested. Under caution, he denied the offence.

9.In a subsequent video recorded interview, the defendant again denied the offence and claimed that he was on his way home after watching people playing football at the Lion Club Football Pitch near Tuen Mun Hospital.

Previous convictions

10.The defendant was first convicted in November 2005 when he was 15 years old on 2 charges of robbery and 2 charges of attempted robbery and was sentenced to 24 months’ probation. He was also recently convicted of 4 counts of theft at Tuen Mun Magistracy (TMC 4451/2009) and was due to be sentenced yesterday. Having been informed of the defendant’s pending case in the District Court, the learned Magistrate adjourned the Tuen Mun case sentencing to 4^th March 2010 pending the outcome in the present case. It is noted that the offence in the present case was committed between 3 to 5 months before the commission of the offences in the Tuen Mun case.

11.A Young Offender Assessment Panel report together with reports from the Rehabilitation Centre, Detention Centre and Training Centre were ordered by the learned Magistrate and they have been made available to me for the purpose of my sentencing in the present case with the defendant’s consent.

Mitigation

12.The defendant is 19 years old. A full account of his background is given in the above mentioned reports and I shall not repeat them here. The conclusion reached by the YOAP is that, for the Tuen Mun theft charges, a period of detention in the Detention Centre is appropriate.

13.Mr. Ho for the defendant put forward the following in mitigation. The defendant came to Hong Kong in 2004 to reunite with his family. His fiancé, who was pregnant at the time, joined him in Hong Kong in October 2009. A son was born to the defendant on 25^th December 2009 in Hong Kong. The defendant worked in a flower factory at first but in order to make more money he quit and worked as a delivery worker. He was made redundant in May 2009 when business declined and the defendant became unemployed. At that time the defendant’s fiancé was already pregnant and the defendant was very concerned about the welfare of the baby due to arrive soon.

14.On the evening of the commission of the present offence, the defendant had had drinks with his friends in a nearby pub to “release pressure”. After the drinking, while the defendant was on his way home he noticed the victim walking pass him alone. The defendant saw the opportunity to make some quick money and took the wrong step, “relapsing into the previous way of breaking the law”, attempting to rob the victim of her belongings.

15.It is submitted that the defendant realized what he did was wrong, that he is remorseful and that he is going to miss an important period of his as well as his son’s life as he is likely to face imprisonment. Mr. Ho told the court that he had already advised the defendant on the high likelihood of a term of immediate custodial sentence in jail rather than the Detention Centre and the defendant understands and accepts that fact.

Sentencing authorities

16.In the case of Mo Kwong-sang v R [1981] HKLR 610 “…the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.”

17.There is no usage of weapons in the present case, but the case of Mo Kwong-sang is useful as a general reference when considering the appropriate sentence in street robberies where no weapons are used, in the sense that the starting point should not be higher than 5 years.

18.In relation to the age of the defendant, it is noted that s.10 of the Theft Ordinance is an excepted offence under schedule 3 of the Criminal Procedure Ordinance, Cap.221, as such, section 109A of the CPO does not apply by virtue of section 109A(1A) of the same ordinance, meaning this court is not legally required to consider whether there are other methods of dealing with a person over 16 and under 21 before imposing a term of imprisonment.

Sentence

19.Attempted robbery is a serious offence. It is not the first time that the defendant had resorted to violence in trying to deprive others of their property. Although there does not appear to have been extensive planning in the commission of the robbery, it can be seen from the summary of facts that the defendant had first walked pass the victim once before targeting her.

20.This was an attempted robbery of a young woman walking alone late at night that involved the snatching of her handbag and resulted in minor injuries to her. The victim did not suffer any losses as the snatching of the handbag failed, but the trauma that she suffered must be considerable. Offences of this nature should and do carry immediate custodial sentences even for a first offender.

21.Given the fact that no weapons were used, but also taking into consideration the circumstances of the commission of the offence, I find that an appropriate starting point for this attempted robbery is 4 years’ imprisonment. Granting the defendant the full 1/3 discount for his plea of guilty, I will sentence the defendant to 32 months’ imprisonment.