HKSAR v. Tsui Siu Man
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DCCC 1028/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1028 OF 2014 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap.210. Particulars of the charge are that he on 24 August 2014 robbed Wang Shiqi and Li Qing of about $15,000 cash at Shop nos. 2-4, Ground Floor, Tai Yuen Shopping Centre, Tai Yuen Estate, Tai Po, New Territories. Outline of facts 2.At about 10:27pm on the charge date, while staff of the shop Japan Home (PW1, 2 and 3) at the charge address were closing up, the defendant who was wearing a cap, surgical mask and a pair of labour gloves pushed aside PW1 who was standing at the shop entrance and rushed into the shop. The defendant walked to the cashier, took out a folding knife with a 4-inch blade and pointed it towards PW1. 3.PW2 was scared and shouted “call the Police”. The defendant then pointed the knife towards PW2 and told her to “take out all the money”. PW2 complied and took out around $15,000 cash from the drawer beside the cash register and placed the money on a table. The defendant took the money and fled, dropping a white plastic bag on the way out of the shop. PW3 reported the case to the Police. 4.Closed circuit television footages of the shop captured the defendant committing the robbery. 5.Closed circuit television footages of nearby Tai Lok House show the defendant leaving Tai Lok House carrying a white plastic bag at 10:06pm on the day, returning at 10:33pm in different clothing the same day. 6.Police later found a folding knife and a cap at a flowerbed of Tai Yuen Estate Central Park. Examination conducted on the cap at the Government Laboratory shows that the defendant was a possible source of the DNA mixture found from the inside surface of the cap. 7.The defendant was arrested at 1:10pm on 2 September 2014. Under caution, the defendant said “Ah Sir, I have committed this. I know I will be arrested.” The defendant claimed that he had disposed of the knife, the cap, the mask and the gloves at Tai Yuen Central Park. He also claimed that he had already spent the stolen cash. 8.In a subsequent video recorded interview, the defendant confessed to robbing the shop of $10,000 something. The cap, knife, mask and jacket that he wore during the robbery were kept in his girlfriend’s home before the robbery. He spent the stolen money on food, entertainment and drugs. The defendant decided to rob the shop a few days before and had visited one day before to make up his mind whether to go through with the robbery or not. He chose the shop because it was easy to rob. 9.In the second video recorded interview, the defendant confirmed that he was the person seen to be robbing the shop in the closed circuit television footages, as well as the person leaving and later entering Tai Lok House. He also confirmed that he had changed his clothes before the robbery to avoid being identified. 10.In the third and final video recorded interview, the defendant confirmed that he used the white plastic bag to carry the equipment he used in the robbery, and that he got changed at Tai Yuen Central Park before committing the robbery. After the robbery, he disposed of the knife at the flowerbed near the shop and the cap, mask and gloves at Tai Yuen Central Park, and then escaped through the multi-level carpark back to Tai Lok House. He then disposed of his waist bag and shoes at the lift lobby on 20th floor. Previous convictions 11.Although the defendant has 14 previous convictions, none is similar to the present offence. There are however 2 convictions for theft in 2003 and 2012 respectively. The defendant’s latest conviction was for possession of dangerous drugs when he was sentenced to 2 weeks’ imprisonment suspended for 12 months in November 2014, being 3 months after his commission of the present offence. There was therefore no breach of that suspended sentence. Mitigation 12.The defendant is 43 years old. He was educated up to secondary one level. The defendant was married but his wife had left him. The defendant has been living with his girlfriend for the past 5 years. She is the mother of their 1 year old child. 13.Mr. Mui submitted that the defendant had been cooperative with the Police and had given detailed accounts relating to the commission of the offence. 14.A letter written by the defendant and one by his cohabitee were handed up. I was told that the defendant committed the offence because of financial pressure of caring for his newborn child. The defendant was unemployed at that time, and since he is a responsible husband who always takes care of the family, he foolishly committed the offence. 15.I also learned from the cohabitee, Madam Liu, that she suffers from depression and would have hallucinations and suicidal thoughts. She has to rely on medication and has past history of self-mutilation by cutting her hand. I would strongly suggest her to contact the Social Welfare Department to see how best they can assist her. Sentencing guidelines 16.The maximum sentence for a conviction of robbery upon indictment is that of life imprisonment. 17.As Mr. Mui pointed out in mitigation, in the case of Mo Kwong-sang v R [1981] HKLR 610, the Court of Appeal laid down guidelines for particular categories of robbery.
18.The Court went on to state that if the robbery involved an invasion of private premises then a sentence of 6 years is appropriate and if actual violence is applied to the victim then 7 years should be considered. Sentence 19.In our present case, the defendant did brandish a knife towards PW1 and PW2 having entered the shop, a private premises. The defendant however did not make any further threats towards any of the staff of the shop, nor was there any actual violence. 20.Applying the Mo Kwong-sang guidelines, I find an appropriate starting point is that of 6 years’ imprisonment. Aggravating factors 21.None of the aggravating factors identified by the Court of Appeal in Mo Kwong-sang are present in our case. However, in HKSAR v Lai Kam Tong and another [2005] 1 HKC 232, the Court of Appeal said that the fact that the robbery was premeditated and well planned was a serious aggravating factor. Mr. Mui agrees with that proposition and urges the court not to increase the sentence by anything more than 6 months. 22.Here the defendant had visited the shop a few times before the robbery and was there just the day before to decide whether to go through with it. Through his visits, the defendant was able to find out the closing time and routine of the staff and that, no doubt, played an important part in his eventual execution of the robbery. The defendant wore different clothing when committing the offence, disposed of the equipment and clothing articles in different places right after the robbery and while fleeing. He wore a cap and mask to conceal his facial features, and gloves to avoid leaving fingerprints. His escape route was obviously marked out beforehand. The time from his leaving his girlfriend’s home to returning after the robbery was just 27 minutes. 23.I find therefore that the robbery was premeditated and well planned, and a serious aggravating factor in the case. 24.For this aggravating factor, I will increase the sentence by 6 months, resulting in a sentence of 6 years and 6 months. Mitigating factors 25.In relation to Mr. Mui’s submission that financial difficulties being the reason the defendant committed the present offence and hence a mitigating factor, I rely on the following passage of Stuart-Moore VP from HKSAR v Lee Man-wai, CACC 386/2005:
26.As for the defendant’s frank admission to the Police after his arrest, I find that the usual one-third discount is sufficient to cover any discount so merited. 27.There are no mitigating factors other than the defendant’s timely guilty plea. Final sentence 28.Granting the defendant the full one-third discount for his guilty plea, the defendant is hereby sentenced to 52 months’ imprisonment. The suspended sentence 29.The power of this court on conviction of further offence to deal with a suspended sentence is governed under section 109C of the Criminal Procedure Ordinance, Cap.221, which states that “if an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence”, then the court shall deal with the defendant by one of the ways specified in s.109C(1)(a) to (d). 30.In our present case, the robbery was not committed during the operational period of the suspended sentence in question, hence s.109C does not apply. 31.At the suggestion of Mr. Lee for the prosecution and with Mr. Mui in agreement, I make no order in relation to the defendant’s suspended sentence in relation to the case of FL/4587/14.
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