HKSAR v. Chan Siu Kuen and Another

DCCC482/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 482 OF 2013

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1.D1 and D2 are jointly charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Chapter 10.  D1 and D2 plead guilty to the charge.

Facts

2.This offence took place on 16 January 2013 shortly before 6 p.m.  The victim was a female from the Mainland.  She was allowed to enter and stay in Hong Kong as a visitor.  In breach of her condition of stay, she worked as a prostitute in the location particularized in the charge which was a room rented by her where she operated what was known colloquially as a “one woman brothel”.

3.At the time of the offence, the two defendants posed as customers and visited the victim in the offence location. They brought along a cutter 13 cm in length exclusive of the metal blade and a roll of adhesive tape.  They brandished the cutter at the victim and tied her up with the adhesive tape.  They robbed her of one smartphone, cash in the sum of HK$4,500 and Reminbi ¥500.  The total value of the stolen property was equivalent to about HK$9,600.  After the robbery, they immediately fled the crime scene in different directions.  The victim managed to free herself.  She chased after the defendants and shouted “robbery”.  3 citizens assisted in the pursuit and eventually apprehended D1, and took away the cutter used in the robbery from D1’s trouser’s pocket.  The victim also arrived with her neck wrapped by adhesive tape.  She went up to D1 and said something in Putonghua. Later, the police also arrived and arrested D1. 

4.Under caution, D1 admitted that he committed the offence with D2.  He admitted that he had pointed the cutter at the victim and told her not to act recklessly.  A surgical mask was also found in D1’s possession.  D1 admitted under caution that he brought along the mask as he might need it during the robbery but he did not wear it.

5.D2 was arrested by the police on 17 January 2013.  Under caution, D2 admitted he had committed the offence with D1.  He said that he acted as a lookout at the doorway of the victim’s premises when D1 pressed the door bell, and he later also went inside the premises to take the victim’s mobile phone and money which was kept in a bag.  He admitted that they had tied up the hands and mouth of the victim with adhesive tape.

6.The victim’s mobile smartphone and cash Reminbi ¥500 were recovered from D2.  Hong Kong dollars in the totalsum of $2,631.70 were also seized from D2. D2 claimed that $1,600 of this sum of money were stolen property while the balance was his own money, and that he had spent the balance of money stolen from the victim.

7.D2’s fingerprints were found in the offence location.  The police seized the protection case of the victim’s smartphone and a roll of adhesive tape inside the premises.  Examination revealed that D2’s left thumb print was found on the smartphone protection case, whilst his right middle fingerprint was found on the roll of adhesive tape used to tie up the victim.

8.The victim was eventually charged with the offence of breach of condition of stay.  After she had served a term of 4 weeks’ imprisonment, she was repatriated to the mainland on 9 February 2013.

9.With no objection from the defence, the learned counsel on fiat Mr. Marray produced for my perusal of the cutter used in the robbery and a photograph showing adhesive tape being tied around the neck of the victim.

Criminal record

10.D1 has 9 previous convictions involving a total of 14 offences.  He has no prior conviction for robbery.  His last sentence was imposed on 14 June 2010 when he was sentenced to DATC for the offence of possession of dangerous drugs.  He was released from custody on 27 September 2011.

11.D2 has 3 previous convictions involving a total of 3 offences.  He has no prior conviction for robbery.  His last sentence was imposed on 27 July 2009 when he was sentenced to DATC for the offence of assaulting a police officer.  He was released from custody on 2 November 2010.

Personal and family background

12.D1 is 52 years old.  He was born in the mainland and received education up to secondary two.  He migrated to Hong Kong in 1978 with his parents and a younger brother.  He had been a painting worker but he has been out of employment for 10 years.  He is living on comprehensive social security allowance.  His parents are now both 80 years old and have retired.  He has lost contact with his brother.  D1 divorced his ex-wife 20 years ago.  He lives alone since then.

13.D2 is 34 years old.  He was born in Hong Kong and completed primary education.  He worked as a transportation worker before, but he has been relying on comprehensive social security allowance since 1997.  D2 married in 2001.  His daughter was born the following year, but he divorced his ex-wife in 2006 with custody of his daughter granted to his ex-wife.  D2 re-married in 2011.  His current wife is 31 years old and is living in the mainland.

Mitigation

14.Mr. Chan, the learned Counsel for D1, pointed out that D1 committed the offence because of dire financial difficulties.  He said that D1 was in a desperate state at that time as evidenced by the fact that he had only HK$3 with him at the time of his arrest.  Counsel said that although D1 did hold the cutter, he had not pulled out the blade of the cutter during the course of the robbery.  He pointed out that D1 did not take the stolen property physically, and that D1 had no financial gain from the robbery but his forehead and lip were injured when he was apprehended by the civilians.  Mr. Chan stressed that D1 was not the instigator of the offence.  He submitted that D1’s guilty plea was a genuine one for which full credit had to be given to D1. 

15.Miss Lee, the learned solicitor for D2, submitted that it was just a mere coincidence that D1 and D2 came across each other and they came up with the idea of committing this robbery when they talked about their financial difficulties.  She pointed out that D2 received comprehensive social security allowance of about HK$3,000 each month only, and after deducting payment of rent, he had only $HK$2,000 to spend which was insufficient to support his current wife and to take out his daughter for fun. Miss Lee stressed that the defendants never intended to harm the victim, and that no violence had been used other than tying up the victim.  Miss Lee said that his current wife visited D2 frequently whilst he was remanded, and D2 therefore felt very guilty towards his wife and his daughter.  D2 therefore begged for leniency so that he could reunion with them soon.  Miss Lee stressed that D2 had pleaded guilty and cooperated with the police.  D2 was also willing to make restitution to the victim in the sum of $1,900.  She produced the mitigation letters written by D2 and his daughter for the reference of this Court.

Reasons for sentence

16.The offence committed by the defendants was very serious because (1) this was an armed robbery in which a cutter was brandished at the victim clearly with a view to putting her in fear of her personal safety; (2) the victim was tied up by adhesive tape, and covering her mouth and wrapping around her neck adhesive tape could cause potential danger to the victim; (3) the robbery was carried out by two robbers on a lone woman in private premises, and (4) the offence was premeditated.  In addition, the defendants robbed the victim clearly because she was a vulnerable target due to the very nature of her work as a prostitute.  It has been said time and again that deterrent sentence had to be imposed to protect victim of this kind: HKSAR v Cheng Fuk Wa (CACC442/2005), HKSAR v Lai Kwok Fai (CACC346/2008). For these reasons, even though the defendants plead guilty, the only viable sentencing option is imprisonment.  It is just a question of what is the appropriate length.

17.The tariff sentence for an armed robbery was laid down in the case of Mo Kwong Sang v The Queen [1981] HKLR 610. The Court of Appeal stated the following:

“12. We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

13. If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

14. If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

15. These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.”

18.Cheng Fuk Wa and Lai Kwok Fai were also cases involving robbery of woman inside one-woman brothel by a lone robber.  In both cases, the Court of Appeal upheld a starting point of 7 years’ imprisonment.

19.Applying the Mo Kwong Sang tariff to the present case, since a cutter had been brandished at the victim to threaten her, a starting point of 5 years’ imprisonment is warranted.  Even if D1 had not pulled out the blade of the cutter, I do not think it makes any difference as the threat to pull out the blade was always there when D1 told the victim not to act recklessly when he was pointing the cutter at her.  This starting point must be adjusted upward by one year to 6 years’ imprisonment because the robbery involved invasion of private premises, and then by another one year to 7 years’ imprisonment because the victim’s hands, mouth and neck were tied up with adhesive tapes.  Since this robbery was carried out by two persons rather than one and they clearly acted with premeditation, the sentence should be adjusted further upward by another 3 months.  For these reasons, I adopt a starting point of imprisonment for 7 years and 3 months.  It is permissible to adopt a starting point in excess of the jurisdictional limit of 7 years’ imprisonment that can be imposed in the District Court so long as the ultimate sentence is within the jurisdictional limit and the defendant is given a meaningful discount for his guilty plea.

20.I note submissions by Mr. Chan and Miss Lee on the role played by each defendant in the robbery.  I note also that D1 claimed that he did not instigate the offence.  However, in my view, this robbery was clearly a joint enterprise carried out by D1 and D2.  As to who first put forward the idea of committing this robbery and the precise role played by each one of them, I do not think it material since each defendant is clearly responsible not only for his own personal acts but also for the acts carried out by his co-defendant.

21.As far as mitigating factors are concerned, I note the reason why each defendant committed the offence. However, financial difficulty was never an acceptable excuse for committing serious offences such as armed robbery.  Financial difficulty is only an explanation why the defendants committed the offence but it was not mitigation.

22.I note that Mr. Chan told me that D1 was injured on his forehead and lip during the incident.  Those injuries were sustained by him when he tried to free himself from apprehension by the civilians who assisted in the pursuit.  He was the author of his own misfortune.  This factor is not mitigation.

23.D2 offered to make restitution to the victim.  However, the money seized from D2 could be returned or paid over to the victim as restitution since it was not open to D2 to say that the money he had spent before he was arrested were just the victim’s money and not his money.  In any event, for an offence of this serious magnitude, an offer to return $1,900 to the victim made little difference to the sentence.

24.In the present case, the only valuable mitigating factor is the guilty plea of each defendant.   For that reason, each one of them is entitled to a full one-third discount of the sentence.  I note that the victim had been repatriated to the mainland, and that she was not on the schedule of witnesses.  I have considered whether each defendant should be given a greater discount for their guilty plea because of the absence of this witness.  However, it is quite clear to me that the evidence against each defendant is very substantial if not overwhelming. D1 was caught fleeing from the scene and D2’s fingerprints were found in the premises and in the adhesive tape used to tie up the victim.  In other words, even if the victim did not testify, it was still very likely that each defendant would be convicted.  For this reason, I decide not to give each defendant more than the usual one-third discount. 

25.I have considered all other matters raised by Mr. Chan and Miss Lee in their pleas in mitigation.  I find no other ground for reducing the sentence further.  I note that I have adopted a starting point in excess of the sentencing jurisdictional limit of the District Court, but I am satisfied that each defendant has been given a meaningful discount for his guilty plea because the sentence to be imposed on him is 26 months below the limit.

26.For these reasons, each defendant is sentenced to imprisonment for 4 years and 10 months.

Please refer to CACC300/2013 for the relevant appeal(s) to the Court of Appeal.