In sentencing, I take into account the whole circumstances of the case, including its nature and facts, the background of the defendant and mitigation put forward on his behalf.
The facts of the case may be summarised as follows.
The defendant entered a shop selling clocks and watches pretending to be a customer. He tried on some watches. When he became the only customer in the shop, he produced a chopper and pointed it at the sales lady. He declared robbery and demanded her to take out all the watches. She managed to activate the alarm.
The defendant kept telling her to take out the watches and threatened to chop and kill her. The sales lady was too scared to move. The defendant himself removed some watches and put them into a rucksack.
He then told her to take out cash which she did. Before the defendant left, he told the sales lady that he recognised her and claimed he knew the area where her boyfriend lived.
The defendant stole nine watches which have a total value of about $690,000. He also took away cash of $32,000 as well as keys and a remote control from the counter.
He left Hong Kong for the mainland on the same day.
About half a year later he returned to Hong Kong and was arrested at an immigration control point.
Under caution he said he was coming over to surrender himself, and he had nothing else to say. In a subsequent interview he admitted having committed the offence. He said he has sold two of the stolen watches, but the other seven were stolen in a burglary of his home. He also said he has spent the stolen money.
The defendant is 44 years of age. He received education in the mainland up to Form 3 level, then he came to live in Hong Kong. He had worked as a decoration worker and a cook. He is married and is living with his wife and a daughter and son in a public housing unit.
He is not a first-time offender. On 12 previous occasions he had been convicted. The first offence he committed was arson for which he was, in 1990, sentenced to receive training in a Training Centre. The other offences he had committed were mostly theft‑related; he had committed 12 theft or attempted theft. He has also committed one burglary.
In 1994 he was convicted of one charge of robbery for which he was sentenced to 3 years’ imprisonment. The last conviction was in December 2004, 10 years ago.
Learned counsel for the defence, Mr Wong, urged the court to accept that the defendant is remorseful. He told the court that the defendant committed the present offence since he was in great financial difficulties for two reasons. He opened a restaurant with his elder sister in 2013 and had put in a capital of more than $200,000. It was a failure and, as a result, he lost all his investment.
In his decoration business as a subcontractor, there was a default of payment by the main contractor at an amount of more than $200,000. As a result, he was not able to pay the wages to his own workers. He tried to apply for a loan, but to no avail.
It was in these great financial difficulties that the defendant had made a foolish decision to commit this offence.
Mr Wong produced a letter written by the defendant’s daughter pleading leniency on behalf of her father. She told the court that the defendant was a responsible and loving father. She also told the court that her whole family is worried about the defendant and hoped he can turn over a new leaf.
Mr Wong informed the court that the knife used by the defendant was a chopper newly bought. Although it was an ordinary domestic chopper ready to use, the defendant did not take any steps to sharpen it. Mr Wong also stressed that the defendant had not used actual violence on the shopkeeper.
He also submitted the following cases for the court’s consideration: HKSAR v Lai Hon Wan CACC 538/1997; HKSAR v Chu Kwok Yui CACC 389/2009; and HKSAR v Chow Tat Hi Peter CACC 60/2005.
This was a case of armed robbery committed in a shop selling valuable items and where a relatively large amount of cash was expected to be available. I have had regard to the Court of Appeal’s decision of HKSAR v Man Siu Ming CACC 318/2011.
The robbery was clearly premeditated. The target was a shop which was expected to have properties of substantial value and a large amount of cash. In HKSAR v Cheng Wai Kai CACC 339/2007, Yeung JA, as he then was, said that the starting point could be adjusted upwards if the offence targeted at substantial premises and involved substantial properties. It was a burglary case. In HKSAR v Pau Lai Sing [2010] 3 HKLRD 233, Yeung JA expressed the same sentiment in a robbery case.
The defendant was armed with a chopper, a lethal and very intimidating weapon. He displayed it to the lone sales lady and threatened her with it. He did not use actual force on the victim and she was not physically harmed. However, at one stage he threatened to kill her. Obviously, this had caused her great fear. Before he fled, he uttered threatening words to the victim again.
He has stolen properties of a total value in the region of $690,000 and cash of $32,000. The loss caused to the shop was substantial.
The defendant has a bad criminal conviction record, but at the same time I also note that he had been able to keep out of trouble for almost nine years. His previous conviction for the offence of robbery took place 20 years ago.
In all the circumstances, I am of the view that a starting point of 7½ years is appropriate.
The defendant pleaded guilty, however he fled the territory on the same day he committed the offence. He returned only about half a year later. That he was the person suspected to have committed the offence was already known to the authority. He was stopped at the immigration check point when he returned to Hong Kong.
Upon his arrest he claimed to return to surrender himself.
In all the circumstances, I cannot conclude that he did not have an intent to surrender. Circumstances such as this were discussed by the Court of Appeal in HKSAR v Sun Yu Hing CACC 398/2010, where the appellant also claimed to be surrendering himself when he returned to Hong Kong. It was held that in such circumstances an accused is only entitled to a smaller discount of 25% when he pleaded guilty. The reason is that such fleeing has rendered the administration of justice more costly and more time-consuming.
In HKSAR v Chow Tak-fuk CACC 428/2004, Stock JA, as he then was, also observed that,
“...those might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.”
The defendant had hidden himself for about half a year.
In my judgment, the defendant is entitled to a discount of slightly more than 25% in the circumstances of the present case taking into account his guilty plea.
Yes, defendant, please stand up.
For the reasons I have mentioned, I sentence you to an imprisonment term of 5½ years.