HKSAR v. Li Kin Chuen

DCCC1004/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1004 OF 2011

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Reasons for Sentence

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1.You pleaded guilty before me with the 1st defendant on 3 January. I adjourned your sentence until today. The joint charge was robbery, contrary to section 10 of the Theft Ordinance, Cap.210.

2.This is a serious charge; in fact, the maximum penalty for this charge can be life imprisonment. 

3.The facts of your case are very simple. 

4.On 12 August last year, the police astutely spotted you and the 1st defendant acting suspiciously and put you under observation. It was about 5 o’clock in the morning.  They watched you follow a young lady, a 17-year-old female, who was at that time talking on her iPhone.  The iPhone was your target.  When she entered a building but before she took the lift, the 1st defendant followed her in whilst you waited outside.  You waited and acted as a lookout.  It was the 1st defendant that pushed the victim and snatched her phone.  

5.As he fled, you followed but obviously the police caught both of you.  The phone was recovered and the victim suffered no injury. 

6.Where violence is used in such a situation that is what constitutes robbery.    

7.The defendant is 21 years old and until now has had no criminal record or convictions. 

8.I heard full mitigation on the last occasion. Your family were in court on that date as they are today.  I have heard that you received education until Form 5, and prior to this offence, for the past 6 months were working as a waiter in the Pokka Café. 

9.I have now had a letter from your supervisor asking the court for leniency and I have heard that on the night of this offence that you had been working and had met some friends, including the 1st defendant; for whatever foolish reason the plan was hatched to commit this offence.  I have heard that you actually had a good income and were not in any financial difficulty, and it has been perhaps explained that you mixed with the wrong crowd and foolishly followed the 1st defendant.

10.As I have said, you were both jointly charged, and from the facts I can only say you are both jointly culpable.

11.Factors I consider relevant are that no weapons were used or displayed; the victim was pushed once from behind but she did not fall nor suffer any injuries; it was a robbery in a public place.  

12.From the facts I find no aggravating factors exist.  From the facts I can see that this is one step up from a snatching offence mainly because there is physical contact and violence.

13.As far as street robberies are concerned, this is not the most serious set of facts for an offence of that nature. 

14.I will also consider relevant your plea and your previous clear record and your co-operation with the police after your arrest.

15.There are no set tariffs for unarmed robberies. However, I have taken into account several authorities, including HKSAR v Ting Chiu [2003] 3 HKLRD 378 and HKSAR v Lam Ka Hung CACC294/2003. 

16.In the authority of Ting Chiu, there were four robbers in an unarmed robbery and the Court of Appeal found a 4 year starting point was appropriate.  In that 4 years, the court factored in an aggravating factor. 

17.In the authority of Lam Ka Hung, that was a one on one robbery.  However, more physical violence was used than in this case and that defendant had a very poor criminal record.  Again, a 4 year starting point was considered appropriate. 

18.I have also considered the authority of R v Yau Kwok Tung [1987] HKLR 782, where Roberts CJ referred to this 4 year starting point in an unarmed robbery as being the top end of the tariff. 

19.What those authorities do establish is that there is a big difference in sentence between armed and unarmed robberies.  The starting point will be obviously lower in an unarmed robbery, but at the same time sentence will depend on each individual set of facts and circumstances, so a 4 year starting point is not a tariff as such but has been upheld in several authorities, including those authorities I have just mentioned.

20.Defendant, please stand up.  After taking into account all the relevant factors I have set out earlier, I find it appropriate to consider a starting point lower than 4 years on these facts and in view of your mitigation.  Accordingly, I will take a starting point of 3 years and 3 months.  You are entitled to a discount of one-third for your plea of guilty. 

21.After this discount you will be sentenced to this offence to 2 years and 2 months’ imprisonment.  Do you understand?

2nd DEFENDANT: Yes.