HKSAR v. Ku Kwok Wai

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.Both the 1st and the 2nd defendants have pleaded guilty today to a joint charge of robbery, contrary to section 10 of the Theft Ordinance, Cap.210. It is a serious charge and the maximum sentence can be a life term of imprisonment.

2.The facts of this case are straightforward.  In the early hours of the morning on 12 August 2011 both defendants were seen acting suspiciously by police officers.  The police officers’ suspicions were very correct and accurate and they went on to observe the 1st defendant commit a robbery with the 2nd defendant acting as a lookout. 

3.What happened was they observed the defendants following a victim, a 17-year-old female, who was talking on her telephone, which was an iPhone.  iPhones seem to be a common target for thefts, snatchings and robberies. 

4.As the victim entered a building, the 1st defendant followed her into the lift lobby whereas the 2nd defendant waited at the entrance, acting as a lookout.  At the lift lobby, the 1st defendant pushed the victim from behind once and at the same time snatched her iPhone from her hand.  She did not fall to the ground, turned and saw the 1st defendant, and shouted “robbery”. 

5.As the defendants fled, the police were upon them almost immediately. 

6.Both defendants were arrested and cautioned and both made admissions as to their roles.  The 1st defendant admitted he robbed PW1 to get her iPhone to resell it.  The 2nd defendant admitted acting as a lookout.

7.In this joint charge I have considered both defendants’ roles and find them jointly culpable.  I do not distinguish between their roles.

8.The 1st defendant is now 22 years old.  He has had a clear record.  Today he has pleaded guilty and shown his remorse.  I have heard full mitigation and seen a letter written by the defendant himself. 

9.The 1st defendant had debts, and I am sure as a result of these debts this foolish plan to rob a victim of her expensive mobile was hatched.

10.The factors I find relevant to sentence are as follows.

11.The victim was only confronted by one robber; there was no weapon displayed by that robber; the violence used was a push to the victim’s back; she did not suffer any injuries; and the robbery took place in a public place.

12.I do not find any aggravating factors exist in the facts of this case.

13.This robbery is one step up from a theft or snatching because of the physical contact and push to the victim.  As far as street robberies go, this is not the most serious set of facts for an offence of this nature.

14.In addition, I consider very relevant the fact both defendants have pleaded guilty and previously had a clear record.  They clearly have co-operated with the police.

15.There are no tariff guidelines for unarmed robberies.  I have considered several authorities, in particular HKSAR v Ting Chiu [2003] 3 HKLRD 378, as well as HKSAR v Lam Ka Hung, CACC294/2003. 

16.In the authority of Ting Chiu, the victim was confronted by four robbers.  In that authority the Court of Appeal found a starting point of 4 years, which factored in an aggravating factor appropriate.

17.In the authority of Lam Ka Hung, that victim was confronted by one robber who used more physical violence than the defendant in this case.  Moreover, in Lam Ka Hung, that defendant had a very poor criminal record.  A 4 year sentence was considered appropriate.

18.In the authority of R v Yau Kwok Tung [1987] HKLR 782, the Chief Justice at that time, Roberts CJ, referred to the 4 year starting point for an unarmed robbery as being the top end of the tariff.

19.What these authorities do establish is that there is a big difference between unarmed and armed robberies.  The sentence will be much lower in an unarmed robbery but an appropriate 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 held to be appropriate in several cases, as I have just described.  I certainly bear it in mind.

20.In this case, having taken into account the relevant factors I set out earlier, I do find it appropriate and possible to consider a lower than 4 year starting point.

21.Defendant, please stand up.  Accordingly, I take to be an appropriate starting point a term of imprisonment of 3 years and 3 months.  Because you pleaded guilty, you are entitled to a discount of one-third for your plea.  Accordingly, you, the 1st defendant, are sentenced to a term of imprisonment of 2 years and 1 month.

Court adjourns - 11.36 am

Court resumes - 11.45 am

1st Defendant present. Appearances as before.

COURT: Yes, I am sorry to have you all back.

22.Defendant, please stand up.  I apologise to you, I made a mathematical error.  A discount of one-third on a 3 year 3 month starting point is 2 years and 2 months, not 2 years and 1 month.  As I have not signed the warrant yet, I take this opportunity now to make this correction.  Do you understand the mistake I made?

1st DEFENDANT: Understand.

Please refer to CACC14/2012 for the relevant appeal(s) to the Court of Appeal.