HKSAR v. Wong Ka Wai

DCCC 532/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 532 OF 2013

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Reasons for Sentence

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1.Defendant, you pleaded not guilty to the 1st charge, being an offence of robbery. You pleaded guilty to two offences of theft, each contrary to section 9 of the Theft Ordinance, Cap 210, and to one offence of robbery, contrary to section 10 of that same Ordinance.

2.In respect of Charges 2 to 4, you admitted the Brief Facts, and I convicted you.  Charge 1 was ordered to be left on file and not to be proceeded with without leave of this court or the Court of Appeal.

3.The facts were as follows.  In respect of Charge 2, on 31 July of 2012 at about 4.45 pm, PW2, a 63-year-old Nepalese female, walked up the stairs between the 2nd and 3rd floor of 184 Shanghai Street, Yaumatei, where she lived.  Suddenly, from behind, you snatched her gold necklace, which was valued at about $4,000, and fled. Charge 3:  on 31 August of 2012 at about 4.30 pm, PW3, a 38-year-old Nepalese female, and her friends were at the staircase of the 3rd Floor, 57-59 Shanghai Street.  From her friend you snatched a gold necklace worth about $3,800, and fled.  Charge 4:  on 6 March of this year at 5.30 pm, PW4, a 32‑year-old Nepalese female, and her friend were walking up the stairs at 1-3 Min Street, Yaumatei.  At the staircase on the 4th floor you suddenly snatched her gold necklace, worth about $12,000, from behind.  She struggled, and you grabbed her shoulder, pushed her against the wall, and then to the ground. Eventually you escaped with her necklace after a struggle.

4.On 26 March of this year you were arrested when you returned to Hong Kong through Lo Wu.  In a video-recorded interview under caution you made the following admissions:

(1) that you committed Charge 4 because you needed the money for the delivery of your baby; you sold the necklace in the mainland for $5,000 RMB;

(2) you sold the necklaces in the mainland from Charges 2 and 3 but could not recall what you had got; they were not of high value;

(3) you acted alone and you followed persons who were wearing gold necklaces.

5.You admitted to 22 previous convictions on nine occasions, 18 of which involved dishonesty.  Many are robberies.

6.Mr McGowan very fairly made two important concessions on behalf of the prosecution, one in respect of Charge 4 - that is the robbery - that the victim suffered no real injuries; secondly, in respect of Charges 2 and 3, they came to light because of your own admissions, and the prosecution would have found them difficult if not impossible to prove without those admissions.  Mr McGowan also placed before me some well‑known sentencing precedents which I do not intend to refer to.

7.On your behalf, Mr Chan entered mitigation.  He said that you agreed with the antecedents statement.  He referred to your plea of guilty and said you had demonstrated your remorse.  He accepted, as indeed he had to, that you have a poor criminal record.  He read to me a letter that you had written in which you expressed your remorse and referred to your baby daughter, who suffered from a heart condition requiring an operation.

8.Prior to arrest, you had been employed as a plumber/electrician, and you committed the offence because you were only working on a casual basis and you needed funds for your baby’s care.  You are the sole breadwinner in the family, which comprises your common law wife, your sick baby, and your two elderly parents.

9.After your last release from prison it had been your intention to go straight, but because of the condition of your baby, you needed money urgently.

10.He referred me to the fact that the victim had not been injured in respect of Charge 4, and that some 10 days ago you had indicated to the prosecution clerk that you intended to plead guilty.  He then took me through four sentencing precedents and submitted that in conclusion, the proper starting point for Charge 4 should be about 3 to 3¼ years, and Charges 2 and 3, about 15 months.  He also urged upon me the application of the principle of totality.

11.One unusual aspect is that you asked to speak to me directly, and this you did.  It merely confirmed what Mr Chan had already told me, but I take it into account when sentencing you.  One of the pleas you put forward was to be reunited with your family as soon as possible.

12.I turn now to the sentence.  You have pleaded guilty to three serious offences, especially Charge 4, which is robbery.  It has to be squarely faced that you are a man with a formidable criminal record involving numerous robbery offences.  There are, however, some points of mitigation which I have taken into account.  I accept that you acted alone. These offences were committed in the afternoon, not in the dead of night. Charges 2 and 3, as Mr McGowan so fairly conceded, arose from your own confession and would have been difficult to prove without that confession, and in respect of Charge 4, no injury was sustained by the victim.  I do note that no compensation has been offered and that the victims have effectively lost their necklaces.  I have also taken into account your domestic situation and the unfortunate medical condition of your baby daughter.

13.In respect of Charge 2, I take as a starting point 15 months’ imprisonment, reduced to 10 months for your plea of guilty; in respect of Charge 3, the same:  15 months, reduced to 10 months for your plea of guilty; and in respect of Charge 4, 39 months, reduced to 26 months for your plea of guilty.

14.I do apply the principle of totality, and order that the 10 months in respect of Charge 3 be served concurrently. This means that Charge 2 will be 10 months; Charge 4, 26 months consecutively, making a total of 3 years’ imprisonment.