HKSAR v. Wong Tsz Hin

DCCC1181/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1181 OF 2011

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Reasons for Sentence

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1.The defendant enters a plea of guilty to Charges 1 and 2, both relating to the offence of robbery, laid against him under section 10 of the Theft Ordinance, Cap.210. The court makes an order by consent to have Charges 3 and 4, namely, possession of an offensive weapon in a public place and going equipped for stealing, left on court file marked not to be proceeded with without the leave of the court or that of the Court of Appeal.

Facts

2.The facts to which the defendant agrees are as follows. 

3.The defendant came to know the two victims Chan and Leung, both aged 14, via the internet.  They exchanged their MSN accounts, in which process the defendant represented himself to be a girl called Kei Kei. 

4.On 13 August 2011, Chan sent Kei Kei an MSN message and arranged to meet up with her outside the public toilet of Shui Mei Tsuen, Pat Heung.  When Chan arrived, Kei Kei called, telling him to go to No.61H Shui Mei Tsuen. 

5.Chan went to Shui Mei Tsuen to find the house at No.61H.  The defendant pretended to be a local villager and offered assistance to him.  In the end, Chan was unable to find the house, so he went back to the public toilet to wait for Kei Kei.  On the way there, the defendant accompanied him.

6.On arrival at the toilet, the defendant went inside and called out to Chan.  Chan entered and saw the defendant holding a knife.  The defendant pushed Chan inside the toilet booth and declared robbery, and took from Chan HK$300, US$1, and a mobile phone (Charge 1).  The defendant then left.  Chan made a report to the police. 

7.On 24 August 2011, the defendant sent an SMS message to Leung asking for a meeting with him at Shui Mei Tsuen, Pat Heung, on 30 August.  

8.On the afternoon of 30 August 2011, Leung waited for Kei Kei, pursuant to her request, at the public toilet of Shui Mei Tsuen.  The defendant approached Leung and said he wanted to use the toilet and asked if Leung could carry his rucksack for him.  Leung agreed and entered the toilet with the defendant. 

9.Once inside, the defendant pushed Leung into a booth, took out a fruit knife from his rucksack, and asked Leung for money and his mobile phone.  He took from Leung HK$1,600 and a mobile phone (Charge 2) and left.  Leung made a report to the police.

10.The police arrested the defendant on 5 September 2011.  Under caution, the defendant admitted to the two offences, but explained that he robbed Chan and Leung because they had the evil or immoral thought of having sex with Kei Kei.

Conviction

11.The court finds the defendant guilty of Charges 1 and 2. 

12.The defendant has had a clear record prior to his current conviction. 

Mitigation

13.In mitigation, the defence puts forward the following matters for the court’s consideration. 

14.The defendant is 16 years old.  He has had a clear record and he pleads guilty to the two charges to express remorse. 

15.Counsel submits that the defendant was brought up by his mother, his father having divorced her in 2004. 

16.A bundle of clemency letters has been placed before the court.  They were written by the defendant himself, his friends, and his teachers and principal at school.  They all tell of a defendant who has been lively, honest, and kind-hearted.  

17.Counsel urges the court to obtain various pre-sentence reports in view of the defendant’s age.    

Discussion

18.Robbery is a serious offence, carrying as it does a statutory maximum of imprisonment for life.  It consists of two criminal elements, namely, the use of force, actual or threatened, and a dishonest appropriation of the victim’s belongings.  A deterrent sentence is invariably called for.

19.The Court of Appeal has laid down a sentence guideline for armed robbery (Mo Kwong-sang v R [1981] HKLR 610).  For a robbery in which a knife is displayed, a starting point of 5 years would be appropriate.  

20.In Mo Kwong-sang’s case, the court said previous clear record would count little in mitigation in a case of armed robbery, and that if any physical violence was used, a starting point of seven years should be considered.

21.There are significant aggravating circumstances in the instant case.  The defendant had planned his robbery.  He enticed the victims, via the internet, to a remote place.  He pushed the two victims inside a toilet booth, so actual violence was used, albeit slight.  Finally, he took away the victim’s mobile phones, which would at the very least result in much inconvenience to them.   

22.In all the circumstances, the starting point for each of the two offences should be one of six years.  In terms of overall criminality, the court considers appropriate a global starting point of seven years for the two offences.

23.The defendant is a young person of 16.  There is an international norm that a prison term should be imposed on a young person only as a last resort.  Hong Kong adheres to this international standard (see section 109A of the Criminal Procedures Ordinance, Cap.221).  But the requirement to consider all options before sentencing a young offender to prison does not apply to offences that are declared to be excepted offences, and robbery is an excepted offence.  In any event, it is the court’s view that none of the other sentence options can possibly reflect the gravity of the defendant’s crime.  The court rules that pre-sentence reports would serve no useful purpose in this case. 

24.Apart from his guilty pleas and clear record, nothing in the defendant’s background would justify any further discount in sentence.

Conclusion

25.A starting point of six years is adopted for each of the two Charges, which is reduced by one-third on account of the defendant’s guilty pleas and clear record to one of four years’ imprisonment. 

26.Having considered the principle of totality, the court orders that eight months of the sentence for Charge 2 should run consecutively to the four years’ sentence for Charge 1, resulting in a total sentence of four years and eight months’ imprisonment.  

27.A six-month reduction is given to the defendant on account of his age.

Order

28.For the two offences of which he stands convicted, the defendant is sentenced to four years and two months’ imprisonment. 

Please refer to CACC38/2012 for the relevant appeal(s) to the Court of Appeal.