HKSAR v. Ma Chi Sang and Another

DCCC 136/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 136 OF 2011

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Reasons for Sentence

1.D1 pleaded guilty to the charge while D2 was convicted after trial.

2.D1 was a marble worker at the construction site between 11/2009 to 4/2010.  D2 was employed as an odd job worker at the site since 10/2009.  He was still employed at the material time.

3.Since 8/2010, there were 2 containers placed near to the guard post of the site.  Inside the containers, there were construction materials which worth about $530,000.

4.On 2/12/2010, D2 called PW2 to lift the 2 containers from the site to Yuen Long.

5.At 8:15 p.m., the guard in the night shift was attacked by 2 persons, by pushing and punching on his head.  He was later blinded folded, covered by tapes on his mouth; his limbs were all tied up before removing to the nearby hut.

6.A minute later, the guard heard that the alarm was activated, but went off after a minute.

7.PW2 and PW3 were crane drivers.  At about 8 p.m., they met D2 at Kwu Tong Market as arranged by D2.  At about 8:45 p.m., D2 led them to the site and left at the gate.

8.The police arrived at the scene and arrested D1 who was running towards the gate of the site.

9.D2 was arrested on 6/12/2010.

Criminal record of D1

10.D1: 3 previous, all unrelated.  2 related to possession and publication of indecent articles in 2002, one of possession of Part 1 poison.  D2: has a clear record.

11.In mitigation, I am told that D1 is 41 years old, married with a son who is only 11 years old.  D’s wife wrote to this court to plead leniency on his behalf as the family will lose the support of D1 when he goes to jail.  The wife suffers from depression.  Her mental condition has already been deteriorated since D1 is in custody.  The son still does not know that D1 is now being detained.  At the time of the commission of the offence, D1 has been unemployed for some time and he was under a lot of financial stress.  He is now remorseful for his deed.  He himself suffered a fracture wrist during the escape.

12.As said in many cases that financial pressure and family hardship are not mitigating factors, D1 should have aware that his family would suffer as a consequence of his illegal acts.

13.D1’s counsel asked for a lighter sentence as he was not the master-mind in this case.  I disagree because D1 actively participated in the preparation of the removal of the containers before the police arrived. Without his assistance, the plan to rob the containers could not be easily carried out.  It was only the police arrived on time to stop the 2 cranes from leaving the site.

14.As to D2, he has a clear record.  Divorced.  He worked in the site as an odd job worker and earned $11,000 per month.

15.He suffered from “alcohol/substance withdrawal state and alcohol dependence syndrome” as he drinks 6-10 bottles and various kinds of wine every evening.  However, since his detention in this matter, he does not have the resources to drink any alcohol.  He can take this opportunity to treat his alcoholic problem.

16.Both the Defence and Prosecution submitted the case of HKSAR v. Ting Chiu CACC 174/2003 and HKSAR v. Tsang Wai Man CACC 288/2006 for unarmed robbery the starting point is 4 years.

Sentence

17.This case involved at least 3 persons.  D1, D2 and one other.

18.D1 was arrested at the scene.

19.At the time of the offence, D1 no longer worked at the site.  However, he was inside the site with another person to subdue/attack the guard.

20.Although no weapon was used, certain amount of violence was applied on the victim who was not required to be treated in the hospital.  It was fortunate that the guard did not suffer any injury.

21.The Defence also pointed out that the owner of the 2 containers did not suffer any loss.

22.However, in the present case, it involved a sophisticated plan by employing the use of 2 cranes which costs $4,000 in total.  The value of materials contained in containers worth about $530,000.

23.It can be distinguished from the case of Tsang Wai Man and Ting Chiu that they were street robbery and the amount was relatively smaller than the present case.

24.To this extent, I adopt a starting point of 4½ years, D1’s sentence be reduced to 3 years because of his guilty plea.  D2 is sentenced to 4½ years.

Please refer to CACC308/2011 for the relevant appeal(s) to the Court of Appeal.