HKSAR v. Ao Chi Wa and Another

DCCC 169/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 169 OF 2013

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Reasons for Sentence

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1.The 1st and 2nd defendant pleaded guilty to a charge of attempted robbery, and the 1st defendant also pleaded guilty to a charge of theft.

2.The facts were that at about 6 am on 14 December 2012, while the victim was walking along Canal Road East near Russell Street in Causeway Bay, he was stopped from behind and being accused of having flirted with a girl by the 1st defendant loudly and fiercely.  Both defendants were approaching him, pointed and shouted at the victim.

3.The 1st defendant also punched the victim’s chest and attempted to snatch the victim’s mobile phone and further punched his head to make him fell onto the ground.  Both defendants also kicked him 4 to 5 times.  The victim shouted “Robbery”, and a security guard happened to walk pass shouted “Stop it”, and they fled.

4.For the victim’s injury, he had redness, tenderness, swelling in his head and face, bruises and abrasions on both hands and right knee.

5.On the same day, both defendants entered I-One Internet Café on the 11th Floor, Ying Kong Mansion, Causeway Bay.  The cashier was on duty inside the cashier room but fell asleep.  The room was with the signs of “Staff only” and “No unauthorized entry”.  However, the 1st defendant went in and stole the cashier’s mobile phone valued at about $2,800 and left.  Yet the CCTV had already captured his image.

6.Later on 15 December 2012, the said security guard happened to see them again and reported to the police leading to their arrests subsequently.

7.The 1st defendant is aged 29.  He had 11 previous criminal convictions including attempted theft, common assault, 4 counts of assault occasioning actual bodily harm and possession of dangerous drugs where he was last sentenced for 10 weeks’ imprisonment.

8.Mr Tang submits that the 1st defendant was born in Macau and came to Hong Kong in 1990 and had been a casual delivery worker earning about $8,000 per month.  The 1st defendant also abused on drugs including “Ice” and is currently receiving treatment.  He was remorseful for what he had done.  There was no weapon and the violence did not cause permanent injury to the victim.  And for the theft charge, the 1st defendant just took the opportunity and did not hurt anyone therein.

9.For the 2nd defendant, he is aged 32.  He had 11 previous criminal convictions including 2 counts of robbery, attempted theft, wounding and 2 counts of assault occasioning actual bodily harm and acting as members of triad society.  He was last sentenced in August 2011 of criminal damage and theft for a total of 7 months’ imprisonment.

10.Mr Wong submits that the idea of snatching only came a few minutes before the encounter and it was clearly the 1st defendant playing the major role but the 2nd defendant did kick the victim and presented himself therein.

11.Mr Wong also mentions that both defendants did not pick any helpless female nor old age person and the incident was not taken in a quiet place.

12.Attempted robbery and theft are serious offences.  For unarmed robbery, the Court of Appeal in HKSAR v Ku Kwok Wai CACC14/2012 lists out several similar cases.  And for that case there were also 2 young defendants pushing the victim’s back and snatched the iPhone from the victim.  The starting point of 3 years and 3 months was affirmed. In HKSAR v Ting Chiu CACC174/2013 concerning 4 persons of unarmed robbery, 4 years’ imprisonment was adopted as the starting point.

13.For the present case, there were 2 persons involved, it happened in the early morning where the victim was punched on his head and then being kicked when the victim was on the ground, the facts were serious.

14.Taking into account the previous records of both defendants involving the same or similar offences with violence, the court should have taken a higher starting point as indicated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  However, both defendants pleaded guilty and showed their remorseful attitude.  I shall adopt 3 years and 9 months as the starting point.  Upon guilty plea, that be reduced to 2 years and 6 months.

15.For the 2nd charge of theft, the facts were akin to burglary.  The 1st defendant went in an unauthorized place and stole therein.  Mr Tang submits that the charge of theft went through the negotiation with the prosecution.  Be that as it may, I shall adopt 18 months as starting point, that be reduced to 12 months upon guilty plea. 

16.On totality principle, for the 1st defendant, I assess that an overall sentence of 3 years’ imprisonment be appropriate.  So the sentence is as follows:

1st defendant

1st charge: 2½ years’ imprisonment;

2nd charge: 12 months’ imprisonment, 6 months be run consecutively to the 1st charge;

Total: 3 years’ imprisonment.

2nd defendant

1st charge: 2½ years’ imprisonment.