HKSAR v. Cheng Kam Wing

DCCC 1097/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1097 OF 2013

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REASONS FOR SENTENCE

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1.The defendant, Mr Cheng Kam Wing, pleaded guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance. The particulars of the charge are as follows:-

“Cheng Kam Wing, on the 18^th day of September, 2013, outside Wing Tong House (Block 3), Yau Tong Estate, Kowloon, in Hong Kong, robbed Choy Chim Heung of two bags, one scarf, one beanie, one wallet, cash of about $800 Hong Kong currency, one Hong Kong Identity Card, one Exit-Entry Permit for Travelling to and from Hong Kong and Macau, one Senior Citizen Card, one Octopus card, two bank passbooks, one mobile phone, one chop, 9 red packets containing cash of a total of $710 Hong Kong currency and 8,000 Thai Bahts, one coin bag containing cash of a total of $1.9 Hong Kong currency, 1 Thai Baht and 1 Renminbi, some cards and papers, some medicines, one pen, 7 keys, one nail clipper, one bottle of medical oil, one comb and one badge.”

2.The defendant admitted that at 0205 hours on 18 September 2013, he robbed Madam Choy Chim Heung in Yau Tong Estate. Madam Choy was 74 years of age.  At the material time, she was on her way returning home.  The defendant approached her and took her bag from behind and pushed her to the ground.  The defendant then fled.  This incident caused Madam Choy to suffer various injuries, including lower lip laceration, bruises and fracture over the base of one of her finger bones.  She was admitted and discharged from the hospital on the same day.  I understand that Madam Choy has recovered from her injuries and has not sustained any permanent damage.

3.The bag carried the items detailed in the particulars of the charge.

4.The defendant was later apprehended by the police.  When intercepted, the defendant admitted under caution that he robbed an elderly lady on 18 September 2013.  The defendant took the police to the bushes near a refuse collection point to recover Madam Choy’s handbag.  He admitted that he had spent the money he found in the handbag.  He was then arrested and the defendant again confessed to his crimes when he was further interviewed by the police.

5.Most of Madam Choy’s property was recovered, save some Hong Kong dollar cash.

6.The defendant is a young man.  He is 17 years of age, and is educated up to Form 3.  Before being remanded, he lived with his parents, brother and sister.  He relies on his parents for his living expenses.  The defendant is a first-offender.

7.Both parents of the defendant have written mitigation letters.  I am told that the defendant has been a filial son and has all along enjoyed cordial relationship with his siblings.  The parents naturally feel they were responsible for not having supervised the defendant more vigilantly.  They believe that the defendant committed this offence because of ignorance.  They also blame the adverse influence of some of the defendant’s acquaintances.

8.The defendant’s younger brother also wrote to the court and expresses similar sentiments.

9.A pastor also wrote to the court.  Reverend Lee regularly visits different correctional service department’s facilities.  During the remand period of the defendant, Reverend Lee met with him.  Reverend Lee has formed the impression that the defendant shows genuine remorse.  Reverend Lee also informs the court that he would assist the defendant to look for a job as an apprentice chef.

10.In mitigation, Mr Ng, learned counsel for the defendant, very correctly reminded me that I am dealing with a case of unarmed robbery and that it took place in a public place.

11.The defendant pleaded guilty, and this reflects his remorse over what he did.  Moreover, the defendant did render valuable assistance to the police after he was apprehended.  This resulted in the recovery of Madam Choy’s handbag and other properties.  The defendant also made prompt confessions to the police.  This further reflects his remorse.

12.I note that this case involves one robber acting on his own committing an offence at night near domestic premises. No weapon was used.  The robbery took place in a public place.  The violence used caused some injuries to Madam Choy.  I am of the view that it must have been a very frightening experience for the elderly lady.

13.The defendant is a young man and this offence was committed when he was 17 years of age.  I accept the general principle that no young person should be sentenced to imprisonment if he or she can suitably be dealt with by a non-imprisonment method.  However, I note that the legislature has placed robbery, an offence under section 10 of the Theft Ordinance, under Schedule 3 of the Criminal Procedure Ordinance, making it an excepted offence.  Thus, the requirements imposed by section 109A(1) of the Criminal Procedure Ordinance on a sentencing court to consider other sentencing options and to obtain various reports on the defendant do not apply.

14.I would refer to the judgment of the Court of Appeal delivered by Hon Stock JA (as he then was) in HKSAR v Wu Kee Yi CACC 513/2005, where it was said that robbery has long been recognized as one within a category of offences where the nature of the offending may be such as to demand an immediate custodial sentence despite the youth of the offender.

15.I take note of the fact that this is an “unarmed” robbery.  However, at the same time, the victim chosen by the defendant was an elderly lady.  It was late at night and it took place in the vicinity of domestic dwellings.  Furthermore, the incident did cause injuries to the elderly victim.  A degree of violence was employed.

16.In these circumstances, and bearing in mind what was said by the Court of Appeal in HKSAR v Wu Kee Yi, I have come to the view that this case calls for immediate imprisonment.

17.There is no “tariff” guidelines for the offence of unarmed robbery.  However, when determining the appropriate starting point for sentence, I bear in mind the judgments of the Court of Appeal in R v Yau Kwok Tung [1987] HKLR 782, HKSAR v Ting Chiu [2003] 3 HKLRD 378, HKSAR v Lam Ka Hung CACC 294/2003 as well as HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563.

18.In the judgment of the Court of Appeal delivered by Roberts CJ in R v Yau Kwok Tung, a sentence of 4 years’ imprisonment after trial for an offence of unarmed robbery was said to be at the “top end of the tariff”.

19.I accept that the present case does not fall within the “top end” of the spectrum of this kind of offences.

20.Having regard to all the circumstances of the present case and the mitigation most ably presented by Mr Ng, I would adopt a starting point of 3 years’ imprisonment.

21.As the defendant has pleaded guilty to the charge, he is entitled to 1/3 discount.  This would bring the sentence down to 2 years’ imprisonment.  In recognition of the fact that he is a first offender who has shown a high degree of remorse, I would in addition reduce his sentence by a further 2 months.  This means the defendant is sentenced to imprisonment for 1 year and 10 months.

22.Defendant, Mr. Chan, please stand up. I sentence you to 1 year and 10 months of imprisonment.