HKSAR v. Cheung Sau Yan

DCCC 424/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 424 OF 2015

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Reasons for Sentence
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1.In these proceedings, the defendant, Cheung Sau-yan, faces one count of “Robbery” (contrary to section 10 of the Theft Ordinance, Cap 210) and one count of “Possession of an Offensive Weapon in a Public Place” (contrary to section 33(1) of the Public Order Ordinance, Cap 245).

2.He is convicted of both counts on his pleas and admission of facts.

Facts

3.At about 3.47 am on 10 March 2015, the defendant, wearing a cap and a mask, entered a convenience store in Sham Shui Po and pointed a knife at a shopkeeper, demanding money.  Thus threatened, the shopkeeper handed over cash of $1,600 to the defendant, who fled after taking the same.

4.At about 4.23 am on the 22nd day of March 2015, the defendant was intercepted by a police officer when he was seen acting suspiciously in Ki Lung Street, Sham Shui Po.  The police officer found a knife with a blade of about 20 cm long in a paper shield (referred to as “the knife”), a pair of gloves, a surgical mask and a recycle bag on the defendant’s person.  He was also holding a cap in his right hand.

5.He was arrested and taken back to the police station.  Under caution, the defendant made the following admissions:

(i) he committed a robbery on 10 March 2015 by using the knife to threaten the shopkeeper of a convenience store;

(ii) at the time he was wearing the same cap, the same clothes, and carrying the same knife the police found on him;

(iii)when the police intercepted him on 22 March 2015, he was planning to rob another convenience store with the knife. The surgical mask and the cap were to be used to avoid being identified;

(iv) he committed the offence because he had a gambling problem and was heavily indebted.

6.Subsequently, the shopkeeper of the convenience store identified the knife found on the defendant’s person as the one used against him.

Sentencing Considerations

Armed Robbery

7.The first charge is an armed robbery.  The defendant had used a knife against a victim.  Although the amount involved is so small, it is not a relevant consideration.

8.The Court of Appeal has set down a very clear sentencing guideline for the offence:

“In a case of robbery where a knife or other dangerous weapons are displayed to the victim, the appropriate sentence shall be 5 years’ imprisonment. The sentence shall be increased if there are aggravating factors such as invasion of domestic premises during the night, the presence of more than one perpetrators, threats to the victims, ill‑treatment of elderly persons and children, or a multiplicity of offences of a similar kind. The fact that the offender had a previous clear record should be given little account.”

See Mo Kwong Sang v R CACC 359/1981 [1981] HKLR 610.

9.The facts relating to the first charge fall fairly and squarely within the guideline.  I can see no valid reason to depart from it. I will therefore adopt 5 years as a starting point.

Possession of Offensive Weapon in a Public Place

10.Under section 33(2)(d) of the Public Order Ordinance, offenders of 25 years or more shall be sentenced to imprisonment for no more than 3 years.  Thus, a term of imprisonment is mandatory.

11.In the present case, the defendant was carrying the knife in the early hours of the morning intending to reprise the robbery on another convenience store.  He was stopped in time, but that was because of good police work.

12.My attention has been drawn to the case of HKSAR v Lau Wai Kuen HCMA 523/2011, and HKSAR v Chan Ming Lok HCMA 225/2009.  I note that those are Magistracy Appeals.  Although they are strictly not binding on this court, they do serve to offer a perspective of proper sentence. 

13.In the Lau Wai Kuen case, the appellant had a clear record.  He was seen by the police to be concealing a piece of 18 inch copper water pipe inside a leg of his trousers.  Under caution, he explained that he was going for a talk with the assailant of his brother, and the pipe was for his self‑defence. After trial he was sentenced to 6 months.  The learned High Court judge hearing the appeal refused to interfere with the order. 

14.In the Chan Ming Lok case, the appellant was seen carrying a knife in Mong Kok some time before 2 am acting suspiciously.  He stated he had it for self‑defence.  He was sentenced to 6 months after trial.  The learned High Court judge did not find the sentence manifestly excessive, but decided he could not exclude the possibility that the appellant did intend the same to be a weapon of defence rather than offence, and bearing in mind that the defendant had never been sentenced to a term of imprisonment and that “It was a relatively small domestic knife”, decided to substitute the sentence order with 4 months’ imprisonment.

15.The facts of the present case are more serious. The defendant had equipped himself with a knife to commit another robbery.  The knife in question was a rather hefty piece of weapon.

16.On the facts of this case, I would adopt 9 months as a starting point.

Mitigating Factors

17.The most important factor is of course his guilty plea.  Therefore, for the robbery charge, the 5 years’ imprisonment is reduced to 40 months.  The 9 months’ imprisonment for the possession of offensive weapon is hereby reduced to 6 months.

18.The defence lawyer in mitigation also gave a brief description of the defendant’s circumstances.  He was aged 41 and had a clear record.  He lived alone after his divorce.  He used to be a security guard making $14,000 per month, but his gambling habit caused his downfall.

19.The matters stated above are not valid mitigating factors.  His clear record, as has been pointed out before, should not constitute mitigation.

On Totality Principle

20.I bear in mind what the Court of Appeal has said about totality principle:

“The purpose of the totality principle is to achieve a just and balanced sentence that will not punish the defendant twice for the same conduct and will not be crushing to him. It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender, but also accommodates other relevant sentencing principles such as retribution - that is, the need to punish an offender for his misdeeds - where deterrence is needed in respect of a particular offender or offence to appropriate deter him and others, the need to denounce a conduct, and where an offender preys upon the community, to protect it from his depredations. It is well to remember that at times, a severe sentence will be an appropriate sentencing response, and just because a sentence is severe does not mean that it is not just and balanced.”

See the judgment of McWalters J in HKSAR v Lam Sze Chung Stephen Cr App No 339/2012 [2013] 5 HLKRD 242.

21.The two offences were committed on different days, although both are dealt with in one go.  If anything, the fact that the defendant carried a knife with the intention of carrying out yet another robbery should be aggravation.  Yet, in order to achieve a just and balanced sentence that will not punish him twice without crushing him, I consider that ordering 6 months of the sentence of the second count to run consecutive with the first would be the proper thing to do in the circumstances.

22.The total sentence in this case therefore is 46 months.