A A
B B
DCCC 539/2012
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 539 OF 2012 E
F F
---------------------------
G HKSAR G
v
H H
YU Chik-bing
I --------------------------- I
J J
Before: Deputy District Judge Chainrai
K Date: 25 July 2012 K
Present: Miss Monica Chan, PP of the Department of Justice, for
L L
HKSAR
M Miss Lee Kit Ying, of Lau Chan & Ko, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: (1) Attempted robbery（企圖搶劫罪）
O O
(2) Remaining in Hong Kong without the authority of the
P
Director of Immigration after having landed unlawfully in P
Hong Kong（在香港非法入境後未得入境事務處處長授權
Q Q
而留在香港）
R R
S S
T T
U U
V V
- 2 -
A A
B B
---------------------------
C Reasons for Sentence C
---------------------------
D D
E 1. The defendant has pleaded guilty to the two counts that he E
faces, namely one count of attempted robbery contrary to section 10 of the
F F
Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap
G 200, and one count of remaining in Hong Kong without the authority of the G
Director of Immigration after having landed unlawfully in Hong Kong,
H H
contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.
I I
2. Facts admitted by the defendant disclose that at 5.30 am on 7
J J
May 2012, Ms Lau Yim Fun (PW1), aged 48 years, was waiting for a bus
K alone at a bus stop near the MTR Lai King Station at Kwai Chung Road, K
New Territories. Suddenly, the defendant grabbed hold of her neck from
L L
behind and at the same time pointed a yellow paper cutter which was about
M 16 cm long at her. He declared robbery and demanded PW1 surrender her M
properties. PW1 asked the defendant to free her so she could take out her
N N
properties. After the defendant released his hold of her, PW1 immediately
O pushed the defendant away, turned around to look at the defendant so she O
could identify him and ran out to the road ahead and shouted robbery. At
P P
the time, a vehicle of the Food & Environmental Hygiene Department
Q (“FEHD”) drove past and PW1 was seen. PW1 told those on board the Q
FEHD vehicle about the robbery and pointed out the defendant to them.
R R
The defendant fled at this juncture, and was chased by the officers of the
S FEHD who had alighted from their vehicle to give chase. After a chase of S
about 100 metres, the defendant was caught and subdued. The defendant
T T
still held the yellow paper cutter in his hand. A report was made to the
U U
V V
- 3 -
A A
B B
police, who arrived shortly thereafter. The defendant was unable to
C produce any identity documents save for his Chinese Identity card. He was C
arrested and under caution, he said that he had sneaked into Hong Kong
D D
and that he robbed the woman with a paper cutter for money. He further
E stated that he had sneaked into Hong Kong via Shekou by boat at around 3 E
am on 7 May 2012 intending to seek employment in Hong Kong. PW1 did
F F
not sustain any injury or loss of property in this incident.
G G
3. The defendant is not a first offender. His record dates back to
H H
2002. He has 8 previous convictions in 5 court appearances. Of these, he
I has one previous for robbery in 2003, when he was sentenced to 3 years I
and 8 months’ imprisonment, and four previous for illegal remaining, the
J J
most recent being his most recent conviction, on 11 January 2011, when he
K was sentenced to 18 months’ imprisonment. I am told that he was released K
from prison for this offence on 19 January 2012. This is his fifth illegal
L L
entry into Hong Kong, and was committed very shortly after his last
M release from prison. M
N N
4. In mitigation, learned counsel for the defendant stressed the
O low degree of force used, and that the defendant immediately released O
PW1 when she asked him to. PW1 had suffered no injuries or loss of
P P
property. I was told that the defendant was aged 33 years. He was brought
Q up in a poor family and was uneducated. He had worked as a cook since he Q
was 11 years old. His parents, aged 61 and 60 years respectively, live in
R R
Hunan with his 10 year old sister. He is the sole breadwinner of the family.
S His parents run a food and drink store, and business has been poor, and S
debts of RMB400,000 have been incurred. The creditors pursued the
T T
defendant for repayment and disturbed him at his work place, so much so
U U
V V
- 4 -
A A
B B
that he quit his job. He came to Hong Kong to seek employment to earn
C money to clear the debt. He sneaked into Hong Kong via Shekou by boat, C
and had paid all his money to the boat captain. He had no money and was
D D
hungry and wanted money for food, and thus offended. He was remorseful
E – he had co-operated from the outset and also pleaded guilty. E
F F
5. In sentencing the defendant, I take into account the whole
G circumstances, including the nature and facts of the case, the personal G
background and mitigation put forward on behalf of the defendant.
H H
I 6. Robbery, be it an attempt or a full offence, is a serious offence. I
A term of imprisonment is usually called for. Although the present case is
J J
one of attempted robbery, it falls within the type of robbery involving the
K use of knife envisaged in R v Mo Kwong Sang [1981] HKLR 610, wherein K
a starting point of 5 years’ imprisonment after trial was considered
L L
appropriate. This was a robbery committed at 5.30 am on a lone woman
M waiting for a bus. She was grabbed around her neck from behind, and a M
paper cutter 16 cm in length was shown to her. Although the defendant
N N
released his hold on her neck, he did so only because she asked him to
O release her so she could get her properties for him. O
P P
7. For the immigration offence, Ms Chan for the prosecution has
Q submitted two authorities, HKSAR v Hau Hoi Tung, CACC 39/2002, and Q
HKSAR v Lau Bing, CACC 138/2008, and I have considered these. In the
R R
latter case, the Court of Appeal upheld a sentence of 22 months’
S imprisonment imposed after a plea of guilty for a fifth illegal entry into S
Hong Kong. Ms Lee asks me to take into consideration the totality
T T
principles in assessing the total terms. She asks me to pass a partially
U U
V V
- 5 -
A A
B B
concurrent term on the defendant. She submits that he came to Hong Kong
C to seek work. I do not accept the defendant’s claim that it was his intention C
to look for a job in Hong Kong. The facts as admitted by the defendant
D D
show clearly that he committed the robbery on the very day he entered into
E Hong Kong, almost immediately after landing in Hong Kong. He arrived E
at 3 am and committed the robbery at 5.30 am. He had the paper cutter
F F
with him that he displayed to the victim. He must have brought this with
G him when he came to Hong Kong. I note from his record that he had a G
previous conviction in 2002 for possession of an offensive weapon in a
H H
public place.
I I
8. The defendant has pleaded guilty to the offences at the first
J J
available opportunity. He is entitled to the full one-third reduction for the
K guilty pleas. In my view, that is the only mitigation of weight before me. K
L L
9. For charge 1, I take as a starting point 5 years’ imprisonment
M ie 60 months, discount this by one third to reflect the plea, the defendant is M
sentenced to 3 years and 4 months’ imprisonment ie 40 months.
N N
O 10. For charge 2, the defendant is a repeated offender. This is his O
fifth illegal entry into Hong Kong. In my view, a starting point of 33
P P
months after trial would have been appropriate and I take that as my
Q starting point. The defendant is entitled to one-third reduction for his Q
guilty plea. On charge 2, I sentence the defendant to 22 months’
R R
imprisonment.
S S
11. I have taken into account the totality principle. The defendant
T T
committed the robbery offence after illegally entering Hong Kong. The
U U
V V
- 6 -
A A
B B
sentences for the robbery charge and the immigration offence should be
C consecutive subject to the totality principle. C
D D
12. The authorities HKSAR v Tong Fuk Sing, CACC216/1999
E and HKSAR v Chan Po, CACC290/1999 are the authorities for the E
proposition that the immigration offences should be made consecutive
F F
with the sentence for other offences such as burglary and robbery. But the
G court in considering the overall sentence should bear in mind the totality G
principle.
H H
I 13. In my judgment, a total sentence of 52 months should be I
sufficient to reflect the overall culpability of the defendant. I order 10
J J
months of the sentence for charge 2 to run concurrently with the sentence
K for charge 1, and 12 months to run consecutively, making a total of 52 K
months’ imprisonment.
L L
M M
( Bina Chainrai )
N N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 539/2012
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 539 OF 2012 E
F F
---------------------------
G HKSAR G
v
H H
YU Chik-bing
I --------------------------- I
J J
Before: Deputy District Judge Chainrai
K Date: 25 July 2012 K
Present: Miss Monica Chan, PP of the Department of Justice, for
L L
HKSAR
M Miss Lee Kit Ying, of Lau Chan & Ko, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: (1) Attempted robbery（企圖搶劫罪）
O O
(2) Remaining in Hong Kong without the authority of the
P
Director of Immigration after having landed unlawfully in P
Hong Kong（在香港非法入境後未得入境事務處處長授權
Q Q
而留在香港）
R R
S S
T T
U U
V V
- 2 -
A A
B B
---------------------------
C Reasons for Sentence C
---------------------------
D D
E 1. The defendant has pleaded guilty to the two counts that he E
faces, namely one count of attempted robbery contrary to section 10 of the
F F
Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap
G 200, and one count of remaining in Hong Kong without the authority of the G
Director of Immigration after having landed unlawfully in Hong Kong,
H H
contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.
I I
2. Facts admitted by the defendant disclose that at 5.30 am on 7
J J
May 2012, Ms Lau Yim Fun (PW1), aged 48 years, was waiting for a bus
K alone at a bus stop near the MTR Lai King Station at Kwai Chung Road, K
New Territories. Suddenly, the defendant grabbed hold of her neck from
L L
behind and at the same time pointed a yellow paper cutter which was about
M 16 cm long at her. He declared robbery and demanded PW1 surrender her M
properties. PW1 asked the defendant to free her so she could take out her
N N
properties. After the defendant released his hold of her, PW1 immediately
O pushed the defendant away, turned around to look at the defendant so she O
could identify him and ran out to the road ahead and shouted robbery. At
P P
the time, a vehicle of the Food & Environmental Hygiene Department
Q (“FEHD”) drove past and PW1 was seen. PW1 told those on board the Q
FEHD vehicle about the robbery and pointed out the defendant to them.
R R
The defendant fled at this juncture, and was chased by the officers of the
S FEHD who had alighted from their vehicle to give chase. After a chase of S
about 100 metres, the defendant was caught and subdued. The defendant
T T
still held the yellow paper cutter in his hand. A report was made to the
U U
V V
- 3 -
A A
B B
police, who arrived shortly thereafter. The defendant was unable to
C produce any identity documents save for his Chinese Identity card. He was C
arrested and under caution, he said that he had sneaked into Hong Kong
D D
and that he robbed the woman with a paper cutter for money. He further
E stated that he had sneaked into Hong Kong via Shekou by boat at around 3 E
am on 7 May 2012 intending to seek employment in Hong Kong. PW1 did
F F
not sustain any injury or loss of property in this incident.
G G
3. The defendant is not a first offender. His record dates back to
H H
2002. He has 8 previous convictions in 5 court appearances. Of these, he
I has one previous for robbery in 2003, when he was sentenced to 3 years I
and 8 months’ imprisonment, and four previous for illegal remaining, the
J J
most recent being his most recent conviction, on 11 January 2011, when he
K was sentenced to 18 months’ imprisonment. I am told that he was released K
from prison for this offence on 19 January 2012. This is his fifth illegal
L L
entry into Hong Kong, and was committed very shortly after his last
M release from prison. M
N N
4. In mitigation, learned counsel for the defendant stressed the
O low degree of force used, and that the defendant immediately released O
PW1 when she asked him to. PW1 had suffered no injuries or loss of
P P
property. I was told that the defendant was aged 33 years. He was brought
Q up in a poor family and was uneducated. He had worked as a cook since he Q
was 11 years old. His parents, aged 61 and 60 years respectively, live in
R R
Hunan with his 10 year old sister. He is the sole breadwinner of the family.
S His parents run a food and drink store, and business has been poor, and S
debts of RMB400,000 have been incurred. The creditors pursued the
T T
defendant for repayment and disturbed him at his work place, so much so
U U
V V
- 4 -
A A
B B
that he quit his job. He came to Hong Kong to seek employment to earn
C money to clear the debt. He sneaked into Hong Kong via Shekou by boat, C
and had paid all his money to the boat captain. He had no money and was
D D
hungry and wanted money for food, and thus offended. He was remorseful
E – he had co-operated from the outset and also pleaded guilty. E
F F
5. In sentencing the defendant, I take into account the whole
G circumstances, including the nature and facts of the case, the personal G
background and mitigation put forward on behalf of the defendant.
H H
I 6. Robbery, be it an attempt or a full offence, is a serious offence. I
A term of imprisonment is usually called for. Although the present case is
J J
one of attempted robbery, it falls within the type of robbery involving the
K use of knife envisaged in R v Mo Kwong Sang [1981] HKLR 610, wherein K
a starting point of 5 years’ imprisonment after trial was considered
L L
appropriate. This was a robbery committed at 5.30 am on a lone woman
M waiting for a bus. She was grabbed around her neck from behind, and a M
paper cutter 16 cm in length was shown to her. Although the defendant
N N
released his hold on her neck, he did so only because she asked him to
O release her so she could get her properties for him. O
P P
7. For the immigration offence, Ms Chan for the prosecution has
Q submitted two authorities, HKSAR v Hau Hoi Tung, CACC 39/2002, and Q
HKSAR v Lau Bing, CACC 138/2008, and I have considered these. In the
R R
latter case, the Court of Appeal upheld a sentence of 22 months’
S imprisonment imposed after a plea of guilty for a fifth illegal entry into S
Hong Kong. Ms Lee asks me to take into consideration the totality
T T
principles in assessing the total terms. She asks me to pass a partially
U U
V V
- 5 -
A A
B B
concurrent term on the defendant. She submits that he came to Hong Kong
C to seek work. I do not accept the defendant’s claim that it was his intention C
to look for a job in Hong Kong. The facts as admitted by the defendant
D D
show clearly that he committed the robbery on the very day he entered into
E Hong Kong, almost immediately after landing in Hong Kong. He arrived E
at 3 am and committed the robbery at 5.30 am. He had the paper cutter
F F
with him that he displayed to the victim. He must have brought this with
G him when he came to Hong Kong. I note from his record that he had a G
previous conviction in 2002 for possession of an offensive weapon in a
H H
public place.
I I
8. The defendant has pleaded guilty to the offences at the first
J J
available opportunity. He is entitled to the full one-third reduction for the
K guilty pleas. In my view, that is the only mitigation of weight before me. K
L L
9. For charge 1, I take as a starting point 5 years’ imprisonment
M ie 60 months, discount this by one third to reflect the plea, the defendant is M
sentenced to 3 years and 4 months’ imprisonment ie 40 months.
N N
O 10. For charge 2, the defendant is a repeated offender. This is his O
fifth illegal entry into Hong Kong. In my view, a starting point of 33
P P
months after trial would have been appropriate and I take that as my
Q starting point. The defendant is entitled to one-third reduction for his Q
guilty plea. On charge 2, I sentence the defendant to 22 months’
R R
imprisonment.
S S
11. I have taken into account the totality principle. The defendant
T T
committed the robbery offence after illegally entering Hong Kong. The
U U
V V
- 6 -
A A
B B
sentences for the robbery charge and the immigration offence should be
C consecutive subject to the totality principle. C
D D
12. The authorities HKSAR v Tong Fuk Sing, CACC216/1999
E and HKSAR v Chan Po, CACC290/1999 are the authorities for the E
proposition that the immigration offences should be made consecutive
F F
with the sentence for other offences such as burglary and robbery. But the
G court in considering the overall sentence should bear in mind the totality G
principle.
H H
I 13. In my judgment, a total sentence of 52 months should be I
sufficient to reflect the overall culpability of the defendant. I order 10
J J
months of the sentence for charge 2 to run concurrently with the sentence
K for charge 1, and 12 months to run consecutively, making a total of 52 K
months’ imprisonment.
L L
M M
( Bina Chainrai )
N N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V