A A
B B
DCCC 124/2020
[2020] HKDC 584
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 124 OF 2020
E ____________ E
HKSAR
F F
v
G G
TONG CHEE LEONG
H ____________ H
I Before: HH Judge Dufton I
Date: 22 July 2020
J J
Present: Mr Arthur C.Y. Wong, counsel on fiat, for HKSAR
Mr William Lam instructed by Fan, Wong & Tso,
K assigned by the Director of Legal Aid, for the defendant K
Offences: (1) Robbery (搶劫罪)
L (2) Breach of condition of stay (違反逗留條件) L
M M
REASONS FOR SENTENCE
N N
1. The defendant pleads guilty to one charge of robbery,
O contrary to section 10 of the Theft Ordinance1 (charge 1) and one charge O
of breach of condition of stay, contrary to section 41 of the Immigration
P P
2
Ordinance (charge 2).
Q Q
2. Full particulars of the offences are set out in the summary of
R R
facts admitted by the defendant today.
S S
T 1
T
Cap 210.
2
Cap 115.
U U
V V
2
A A
B B
3. In summary at around 2341 hours on 23 October last year
C the defendant went to the “Circle K” convenience store at shop no. 239 C
on the ground floor of Hey Cheuk Lau, Kwun Tong Garden Estate in
D D
Ngau Tau Kok.
E E
4. At the time two staff of the store, Mr Hong and Ms Yuen
F were on duty. Mr Hong was working at the cashier counter. F
G G
5. The defendant, who was wearing a surgical mask and
H sunglasses entered the store, approached the counter, put a bag on the H
counter and demanded money.
I I
6. The defendant then took out an orange cutter which he
J J
pointed at Mr Hong and repeated the demand for money. Mr Hong
K K
fearing for his safety took out $4,600 cash from the cashier machine and
L
placed the money in the defendant’s bag. The defendant then fled with L
the money.
M M
7. The case was reported to the police.
N N
O 8. The robbery was captured on CCTV. The CCTV footage O
also shows that the defendant had visited the store the previous two nights
P P
before the robbery.
Q Q
9. The defendant was arrested by the police on 28 October
R 2019. Inside the defendant’s home the police recovered an orange cutter, R
clothing and sneakers that resembled those worn by the robber.
S S
T 10. Under caution and in a video recorded interview the T
defendant admitted, inter alia, having visited the store.
U U
V V
3
A A
B B
11. Mr Hong who recognised the defendant as a regular
C customer at the store identified the defendant in an identification parade. C
D 12. Enquiries with the Immigration Department revealed that the D
defendant was a visitor who had overstayed. The defendant last entered
E E
Hong Kong as a visitor on 28 October 2013 and was permitted to stay
F until 26 January 2014. F
G G
13. Under caution the defendant stated that he had forgotten to
H apply for an extension of stay. H
I Mitigation I
J J
14. In passing sentence, I have carefully considered the oral and
K written submissions of Mr Lam, including that the defendant, aged 44, K
and who is from Malaysia, lived with his girlfriend who was a
L L
photographer in the tourist industry. The defendant overstayed so he
M could continue to live with his girlfriend. M
N N
15. With the decline in the number of tourists visiting Hong
O Kong the defendant’s girlfriend had a significant drop in her income. The O
defendant having exhausted his savings borrowed $3,000 for living
P P
expenses from a 64-year old lady Madam Wong.
Q Q
16. Desperate to repay Madam Wong and under the influence of
R alcohol the defendant committed the robbery. Madam Wong confirmed R
to the police that shortly after the robbery the defendant gave her $3,000
S S
3
and extra $200 .
T T
3
See §§2-4, 6-10 & 13 of the written mitigation submissions.
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V V
4
A A
B B
17. I take into account that the defendant has no previous
C convictions. C
D 18. I have read the defendant’s mitigation letter in which he D
expresses his remorse and says he will quit drinking alcohol 4.
E E
F Guidelines F
G 19. In R v Mo Kwong Sang 5 the Court of Appeal laid down G
guidelines for armed robberies. The appropriate sentence for an ordinary
H H
case of armed robbery where a knife or other dangerous weapon is carried
I and displayed is 5 years’ imprisonment. I
J J
20. I am satisfied that a paper cutter is a dangerous weapon 6.
K K
Aggravating factor
L L
21. Mr Lam submits that there are no aggravating features and
M M
that in the special circumstances of the case a lower starting point should
N be adopted7. N
O O
22. I do not agree that desperation to repay a debt and acting
P under the influence of alcohol are special circumstances. I also do not P
agree there are no aggravating factors.
Q Q
R R
S 4 S
See §17 of the written mitigation submissions.
5
[1981] HKLR 610.
T 6
T
See HKSAR v Au Chi Hang & others [2006] 2 HKLRD 312.
7
See §11 of the written mitigation submissions.
U U
V V
5
A A
B B
23. I am satisfied robbery of a “Circle K” convenience store is
C an aggravating factor. In my view staff of convenience stores, C
particularly those working in the early hours of the morning, are
D D
vulnerable to this type of robbery and require protection.
E E
24. Deterrent sentences are required. See for example HKSAR v
F Kwok Cheuk Man8 as applied in HKSAR v Wong Cheung9, HKSAR v Lam F
Hoi10 and HKSAR v Ng Ping Tak11.
G G
H 25. In HKSAR v Lam Hoi the Court of Appeal discussed what H
the quantum should be for this aggravating factor. The court held that in
I I
the circumstances of the case a starting point of 6 years’ imprisonment
J was appropriate for each of three robberies of convenience stores12. J
K K
26. In HKSAR v Ng Ping Tak leave to appeal against sentence
L
was refused where the sentencing court had adopted 6 years’ L
imprisonment as the starting point for each of two robberies, one which
M M
involved the use of a cutter.
N N
27. I am satisfied a starting point of 6 years’ imprisonment is
O appropriate. Giving the defendant full credit for his plea of guilty the O
sentence is reduced to 4 years’ imprisonment.
P P
Q Q
R R
8
[2005] 3 HKLRD 699.
S 9 S
[2011] 5 HKLRD 171.
10
CACC 105/2016.
T 11
T
CACC 52/2019.
12
See §§54-58 of the judgment.
U U
V V
6
A A
B B
Breach of condition of stay - overstaying
C C
28. I take into account that prior to overstaying the defendant
D had been a non-permanent resident on dependent status with a limit of D
stay valid until 24 September 2011 after which the defendant visited
E E
Hong Kong a number of times as a visitor.
F F
29. As summarised earlier the defendant last entered Hong Kong
G G
as a visitor on 28 October 2013 and was permitted to stay until 26
H January 2014. At the time the defendant committed the robbery he had H
therefore overstayed nearly five years and nine months.
I I
30. The maximum sentence is 2 years’ imprisonment. A review
J J
of Magistracy appeals shows that where someone has overstayed for a
K K
number of years a starting point of between 6 and 12 months’
L
imprisonment has been adopted and that sentence depends partly on the L
length of the overstay and whether the defendant surrendered.
M M
31. Mr Lam refers the court to two cases: R v Iqbal Zahid where
N N
the period of overstay was three and a half years 13 and HKSAR v
O Palathanthirige where the period of overstay was more than five years O
and seven months14.
P P
Q 32. In R v Iqbal Zahid the court held that a sentence of 6 months Q
on a plea of guilty was on the high side but not manifestly excessive 15.
R R
In HKSAR v Palathanthirige the court held that a starting point of 9
S S
13
HCMA/1996.
14
T HCMA 541/2015. T
15
The court did however reduce the sentence on appeal because the magistrate had failed to take
into account the defendant had surrendered.
U U
V V
7
A A
B B
months’ imprisonment was on the high side but was still within the
C reasonable range16. I note in both cases the defendants surrendered. C
D 33. In HKSAR v Palathanthirige the appeal court reviewed a D
number of sentence cases for overstaying which I have also considered.
E E
In HKSAR v Gou Ting Fei the court held a starting point of 12 months’
F imprisonment for overstaying over four years was probably rather on the F
high side but not manifestly excessive or wrong in principle 17. There is
G G
no mention in the judgment that the defendant surrendered.
H H
34. After careful consideration I am satisfied a starting point of 9
I I
months’ imprisonment is appropriate for overstaying nearly five years
J and nine months. Giving the defendant full credit for his plea of guilty J
reduces the sentence to 6 months’ imprisonment. The defendant did not
K K
surrender. There are no grounds to further reduce the sentence.
L L
Totality
M M
35. The two offences are entirely separate and distinct for which
N N
consecutive sentences are appropriate. I am satisfied wholly consecutive
O sentences are appropriate18. I am satisfied that a total sentence of 4 years O
and 6 months’ imprisonment properly reflects the defendant’s overall
P P
19
criminal culpability on the two charges .
Q Q
R 16
The court did however reduce the sentence on appeal because the appellant was pregnant a fact R
unknown to the magistrate.
17
S HCMA 195/2002. This case is also referred to in HKSAR v Palathanthirige but not the sentence. S
18
See for example HKSAR v Tiongson Patricia Manalad [2002] 2 HKLRD 681 where consecutive
T sentences for burglary and breach of condition of stay were upheld, although the sentence for T
overstaying was reduced.
19
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
U U
V V
8
A A
B B
Sentence
C C
36. The defendant is convicted and sentenced as follows:
D D
Charge 1 – 4 years’ imprisonment; and
E E
Charge 2 – 6 months’ imprisonment consecutive to charge 1;
F F
G The total sentence to be served by the defendant is 4 years G
and 6 months’ imprisonment.
H H
I I
J J
(D. J. DUFTON)
District Judge
K K
L L
M M
N N
O O
P P
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T T
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