HKSAR v. Lau Hing Kwan

DCCC 1033/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1033 OF 2011

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to robbery (1^st Charge) and unlawful remaining (2^nd Charge).  In the mid-noon on 25 August 2011, outside the exit of MTR Central Station, he pushed the female victim from behind and took her purse, which contained cash, credit cards and personal belongings. 

2.She reported the matter to the police.  The CCTV at the exit captured the robbery.  He was arrested outside Hong Kong Club 2½ hours later with part of the loots.  After arrest and caution, he admitted the robbery after sneaking into Hong Kong the midnight before with a view to making money.   

Defendant’s personal background and mitigation put forward

3.The Defendant is 27 years of age, a Mainland resident.  He received primary education.  He lost his job before arrest.  He has 2 previous convictions for unlawful remaining, in 2009 and 2010 respectively.  His solicitor accepts that this is an aggravating factor in sentencing. 

Considerations in sentencing

Robbery

4.There are no sentencing guidelines for unarmed robbery.  The nearest authority, not directly applicable though, is Mo Kwong-sang v The Queen [1981] HKLR 610, which dealt with armed robbery.  Bar aggravation by factors such as ill-treatment of victim and joint enterprise, a starting point of 5 years should be apposite. 

5.In A.G. v Wong Sai-cheong AR 1/1985, the defendant and an accomplice followed the female victim and her 12-year-old son into the lift in her apartment block.  The defendant put an arm around her neck whilst his accomplice threatened her and the child with a melon knife.  They made off with her cash and jewelry.  On the prosecution’s review of sentence, the Court of Appeal set aside the drug addiction treatment centre order.  A sentence of 3 years was imposed in view of the plea of guilty and the discount on review of sentence.  The notional starting point appears to be in excess of 5 years. 

6.In The Queen v Yau Kwok-tung [1987] HKLR 782, the defendant and another man robbed a couple with neither weapons nor violence.  Roberts CJ regarded that a starting point of 4 years was at the top end but not manifestly excessive. 

7.In A.G. v Shek Sui-tai [1989] 1 HKLR 178, the defendant also followed the female victim into the lift of her apartment block.  He grabbed her neck and pushed her onto the floor.  He tore off her gold necklace and jade pendant from her neck.  The Court of Appeal regarded 4 years as the correct starting point. 

Unlawful remaining

8.According to R v So Man-king [1989] 1 HKLR 142, the tariff for unlawful remaining is 15 months on a guilty plea for a first offender.

Overlapping terms of sentences

9.In HKSAR v Li Yan CACC 84/1998, the defendant committed 2 robberies whilst unlawfully remaining in Hong Kong.  The Court of Appeal did not see fit to overlap the sentences between the robberies and the unlawful remaining by way of totality. 

10.In HKSAR v Ting Chiu & Another CACC 174/2003, the Court of Appeal approved consecutive sentences of a robbery and unlawful remaining without invoking totality for reduction. 

Sentencing this Defendant

11.I take 3 years as the starting point for robbery.  I reduce it by one-third due to his plea of guilty.  There are no other mitigating factors.  The sentence is 2 years (1^st Charge).  I sentence him to 18 months for unlawful remaining (2^nd Charge), this being his third conviction since 2009.  These being distinct offences, the sentences shall be consecutive.  As seen in Li Yan and Ting Chiu (above), no totality adjustment may be warranted, and I see no grounds to suggest a different case here.  The overall sentence is 3½ years.