區域法院（刑事）Deputy District Judge Amy Chan23/8/2020[2020] HKDC 719
DCCC541/2020
A A
B B
DCCC 541/2020
C [2020] HKDC 719 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 541 OF 2020
F F
G ------------------------ G
HKSAR
H H
v
I WAI KA CHEUK I
------------------------
J J
K Before: Deputy District Judge Amy Chan K
Date: 24 August 2020
L L
Present: Mr Ng Kin Wah, Solicitor on fiat, for HKSAR
M Mr Dick Wong Chun Man, instructed by Brandon Luk & Co, M
Solicitors, for the defendant
N N
Offence: [1] Robbery (搶劫罪)
O O
[2] Possession of offensive weapons in a public place (在公
P 眾地方管有攻擊性武器) P
Q Q
---------------------------------------
R REASONS FOR SENTENCE R
---------------------------------------
S S
T 1. The defendant pleaded guilty to one charge of “Robbery”, T
contrary to Section 10 of the Theft Ordinance, Cap 210 (1st charge) and one
U U
V V
-2-
A A
B B
charge of “Possession of offensive weapon in a public place”, contrary to
C section 33(1) and (2) of the Public Order Ordinance, Cap 245 (2nd charge). C
D D
THE FACTS
E E
Robbery charge (Charge 1)
F F
G 2. On 6 May 2020 at around 3:50 am, the defendant entered a 7- G
Eleven convenience store in Tin Shui Wai (“the Shop”), carrying a 57 cm
H H
machete in his right hand. He was wearing a black cap, a black face mask
I and a pair of black gloves. I
J J
3. The defendant shouted “Robbery!” at the staff of the shop.
K Feeling scared, the staff gave the defendant $2,900. The defendant then K
left. The close-circuit television of the Shop captured the above incident.
L L
M 4. Later on, the police checked the CCTV of the vicinity and M
identified the defendant based on his clothing and stature in the footage of
N N
Shui Sing House (“the Building”) in Tin Shui Wai.
O O
Possession of offensive weapons in a public place (Charge 2)
P P
Q 5. At around 6.15 am, police intercepted the defendant at the 27th Q
floor lift lobby of the Building.
R R
S 6. Upon searching the defendant, it was found in defendant’s S
possession a black wallet containing $2,970 and three folding knives which
T T
were around 34.5 cm, 22 cm and 19 cm long respectively.
U U
V V
-3-
A A
B B
7. In a subsequent video recorded interview in relation to Charge
C C
1, the defendant stated that at around 3.45 am on the material day, he left
D home and cycled to the Shop. He then used a machete to rob the Shop. He D
pointed the machete at a shop staff once and stole around $3,000. He then
E E
cycled back home and did not spend the money. The defendant claimed
F he had no intention to hurt anyone. He only committed the offence out of F
momentary greed and he was remorseful.
G G
H 8. For Charge 2, the defendant stated that around two to three H
years ago he borrowed around $10,000 odd dollars. He worried that people
I I
may chase him for the money and pose a threat to him. When the police
J intercepted him, he intended to go out to have breakfast and then go to J
work.
K K
L MITIGATION L
M M
9. The defendant was born and raised in Hong Kong. He is 35
N N
years old. He has a clear record. He graduated at Hong Kong Shue Yan
O
University. His father passed away in 2003. He lives with his mother and O
sister who is an assistant at a clinic and a registered nurse respectively. The
P P
three of them have a close and adhesive relationship. The defendant had a
Q stable job. He worked as a delivery person earning a modest income. His Q
life revolves around his work, leading to a regimented daily life.
R R
S S
T T
U U
V V
-4-
A A
B B
CONSIDERATIONS
C C
10. Robbery is a serious offence. The maximum sentence is life
D D
imprisonment. In accordance with the guidelines in R v Mo Kwong Sang
E [1981] HKLR 610, the appropriate starting point for an ordinary case of E
armed robbery where a knife or other dangerous weapon was carried and
F F
displayed was 5 years’ imprisonment. The Court of Appeal said little
G account should be given to the previously clear record of anyone who took G
part in an armed robbery.
H H
I 11. Mr Wong for the defence referred to R v Asim Hafiz Tahir I
Mahmood CACC 283/2016. The appellant of that case entered a 7-Eleven
J J
convenience store at 6:15 pm, went behind the counter and pointed a 6-
K inch folding knife at the safe, demanding the staff of the store to open it. K
The staff opened the cash till instead. The appellant then grabbed $4,490
L L
in cash. The Court of Appeal found the starting point of 5 years’
M imprisonment is appropriate. M
N N
12. Having viewed the CCTV footage, I am satisfied that the
O instant robbery involved no physical violence. However, the robbery did O
involve an invasion of business premises. In my view, the staff member of
P P
the convenience store working alone in the early hours is vulnerable to this
Q type of robbery and requires protection. Q
R R
13. As regards to Charge 1, I agree with the defence that it was
S carried out in a rather unsophisticated manner. The defendant was merely S
holding the machete with his arm down and the course of conduct lasted
T T
U U
V V
-5-
A A
B B
for 17 seconds and the amount stolen was $2,900. He was co-operative
C with the police throughout. C
D D
14. However, I also noted that this was not an offence committed
E on the spur of moment. The defendant took a large machete of length 57 E
cm for use in the robbery. It is heavy and looks threatening. I would
F F
describe it as lethal weapon which can inflict great bodily harm. He was
G wearing a cap and a face mask when he was committing the robbery which G
made identification difficult.
H H
I 15. But at the end, I agree with the defence and consider a starting I
point of 5 years to be appropriate.
J J
K 16. I now deal with Charge 2, the charge of possession of K
offensive weapon, for which the maximum penalty is 3 years’
L L
imprisonment for people aged 25 or above. There is no guideline sentence
M for Charge 2 as the circumstances of each case can vary so much. M
N N
17. In respect of Charge 2, Mr Wong referred me to two
O authorities, namely 香港特別行政區 訴 李國民 HCMA 508/2018, and 香 O
P
港特別行政區 訴 苟正东 HCMA 479/2016. In short, according to these P
two authorities, possession of a single folding knife of about 15 cm in
Q Q
length, the court adopted a starting point of 6 months’ imprisonment.
R R
18. Mr Wong further submitted that the defendant was found with
S S
three folding knives. However serious it may appear, he was stopped
T shortly after he left his home outside the lift lobby when he was going out T
for breakfast. The duration he possessed the said weapons in a public place
U U
V V
-6-
A A
B B
was extremely trivial. Mr Wong submitted that the danger and harm he
C posed to the public was minimal. C
D D
19. This, I disagree. But for the police’s swift action, the
E defendant would have brought the three folding knives to the public. He E
would pose a serious threat to the society.
F F
G 20. In addition, three knives were involved. They are longer in G
length than that mentioned in the authorities that Mr Wong referred to.
H H
They are around 34.5 cm, 22 cm and 19 cm long. I found that they are
I deadly weapon and extremely dangerous. I
J J
21. Therefore, for Charge 2, I consider the appropriate starting
K point to be one of 12 months’ imprisonment. K
L L
22. Mr Wong asked the sentence in Charge 2 to run concurrently
M with that of Charge 1. However, as these were separate and distinct acts, I M
do not see any reason to pass wholly concurrent sentence.
N N
O 23. The defendant pleaded guilty and he would get a one-third O
reduction in sentence for his pleas. Other than the pleas, I do not see any
P P
strong mitigating factor which would warrant any additional reduction in
Q sentence. Q
R R
24. For Charge 1, 5 years reduced by one third is 40 months.
S S
25. For Charge 2, 12 months reduced by one third is 8 months.
T T
U U
V V
-7-
A A
B B
26. These were separate acts and separate offences. Sentences
C should in principle run consecutively. However, applying the totality C
principle, I order that 5 months of the 8 months’ term for Charge 2 is to run
D D
consecutively with the term of 40 months for Charge 1, making a total of
E 3 years 9 months’ (45 months) imprisonment for Charge 1 and 2. E
F F
G G
H H
( Amy Chan )
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 541/2020
C [2020] HKDC 719 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 541 OF 2020
F F
G ------------------------ G
HKSAR
H H
v
I WAI KA CHEUK I
------------------------
J J
K Before: Deputy District Judge Amy Chan K
Date: 24 August 2020
L L
Present: Mr Ng Kin Wah, Solicitor on fiat, for HKSAR
M Mr Dick Wong Chun Man, instructed by Brandon Luk & Co, M
Solicitors, for the defendant
N N
Offence: [1] Robbery (搶劫罪)
O O
[2] Possession of offensive weapons in a public place (在公
P 眾地方管有攻擊性武器) P
Q Q
---------------------------------------
R REASONS FOR SENTENCE R
---------------------------------------
S S
T 1. The defendant pleaded guilty to one charge of “Robbery”, T
contrary to Section 10 of the Theft Ordinance, Cap 210 (1st charge) and one
U U
V V
-2-
A A
B B
charge of “Possession of offensive weapon in a public place”, contrary to
C section 33(1) and (2) of the Public Order Ordinance, Cap 245 (2nd charge). C
D D
THE FACTS
E E
Robbery charge (Charge 1)
F F
G 2. On 6 May 2020 at around 3:50 am, the defendant entered a 7- G
Eleven convenience store in Tin Shui Wai (“the Shop”), carrying a 57 cm
H H
machete in his right hand. He was wearing a black cap, a black face mask
I and a pair of black gloves. I
J J
3. The defendant shouted “Robbery!” at the staff of the shop.
K Feeling scared, the staff gave the defendant $2,900. The defendant then K
left. The close-circuit television of the Shop captured the above incident.
L L
M 4. Later on, the police checked the CCTV of the vicinity and M
identified the defendant based on his clothing and stature in the footage of
N N
Shui Sing House (“the Building”) in Tin Shui Wai.
O O
Possession of offensive weapons in a public place (Charge 2)
P P
Q 5. At around 6.15 am, police intercepted the defendant at the 27th Q
floor lift lobby of the Building.
R R
S 6. Upon searching the defendant, it was found in defendant’s S
possession a black wallet containing $2,970 and three folding knives which
T T
were around 34.5 cm, 22 cm and 19 cm long respectively.
U U
V V
-3-
A A
B B
7. In a subsequent video recorded interview in relation to Charge
C C
1, the defendant stated that at around 3.45 am on the material day, he left
D home and cycled to the Shop. He then used a machete to rob the Shop. He D
pointed the machete at a shop staff once and stole around $3,000. He then
E E
cycled back home and did not spend the money. The defendant claimed
F he had no intention to hurt anyone. He only committed the offence out of F
momentary greed and he was remorseful.
G G
H 8. For Charge 2, the defendant stated that around two to three H
years ago he borrowed around $10,000 odd dollars. He worried that people
I I
may chase him for the money and pose a threat to him. When the police
J intercepted him, he intended to go out to have breakfast and then go to J
work.
K K
L MITIGATION L
M M
9. The defendant was born and raised in Hong Kong. He is 35
N N
years old. He has a clear record. He graduated at Hong Kong Shue Yan
O
University. His father passed away in 2003. He lives with his mother and O
sister who is an assistant at a clinic and a registered nurse respectively. The
P P
three of them have a close and adhesive relationship. The defendant had a
Q stable job. He worked as a delivery person earning a modest income. His Q
life revolves around his work, leading to a regimented daily life.
R R
S S
T T
U U
V V
-4-
A A
B B
CONSIDERATIONS
C C
10. Robbery is a serious offence. The maximum sentence is life
D D
imprisonment. In accordance with the guidelines in R v Mo Kwong Sang
E [1981] HKLR 610, the appropriate starting point for an ordinary case of E
armed robbery where a knife or other dangerous weapon was carried and
F F
displayed was 5 years’ imprisonment. The Court of Appeal said little
G account should be given to the previously clear record of anyone who took G
part in an armed robbery.
H H
I 11. Mr Wong for the defence referred to R v Asim Hafiz Tahir I
Mahmood CACC 283/2016. The appellant of that case entered a 7-Eleven
J J
convenience store at 6:15 pm, went behind the counter and pointed a 6-
K inch folding knife at the safe, demanding the staff of the store to open it. K
The staff opened the cash till instead. The appellant then grabbed $4,490
L L
in cash. The Court of Appeal found the starting point of 5 years’
M imprisonment is appropriate. M
N N
12. Having viewed the CCTV footage, I am satisfied that the
O instant robbery involved no physical violence. However, the robbery did O
involve an invasion of business premises. In my view, the staff member of
P P
the convenience store working alone in the early hours is vulnerable to this
Q type of robbery and requires protection. Q
R R
13. As regards to Charge 1, I agree with the defence that it was
S carried out in a rather unsophisticated manner. The defendant was merely S
holding the machete with his arm down and the course of conduct lasted
T T
U U
V V
-5-
A A
B B
for 17 seconds and the amount stolen was $2,900. He was co-operative
C with the police throughout. C
D D
14. However, I also noted that this was not an offence committed
E on the spur of moment. The defendant took a large machete of length 57 E
cm for use in the robbery. It is heavy and looks threatening. I would
F F
describe it as lethal weapon which can inflict great bodily harm. He was
G wearing a cap and a face mask when he was committing the robbery which G
made identification difficult.
H H
I 15. But at the end, I agree with the defence and consider a starting I
point of 5 years to be appropriate.
J J
K 16. I now deal with Charge 2, the charge of possession of K
offensive weapon, for which the maximum penalty is 3 years’
L L
imprisonment for people aged 25 or above. There is no guideline sentence
M for Charge 2 as the circumstances of each case can vary so much. M
N N
17. In respect of Charge 2, Mr Wong referred me to two
O authorities, namely 香港特別行政區 訴 李國民 HCMA 508/2018, and 香 O
P
港特別行政區 訴 苟正东 HCMA 479/2016. In short, according to these P
two authorities, possession of a single folding knife of about 15 cm in
Q Q
length, the court adopted a starting point of 6 months’ imprisonment.
R R
18. Mr Wong further submitted that the defendant was found with
S S
three folding knives. However serious it may appear, he was stopped
T shortly after he left his home outside the lift lobby when he was going out T
for breakfast. The duration he possessed the said weapons in a public place
U U
V V
-6-
A A
B B
was extremely trivial. Mr Wong submitted that the danger and harm he
C posed to the public was minimal. C
D D
19. This, I disagree. But for the police’s swift action, the
E defendant would have brought the three folding knives to the public. He E
would pose a serious threat to the society.
F F
G 20. In addition, three knives were involved. They are longer in G
length than that mentioned in the authorities that Mr Wong referred to.
H H
They are around 34.5 cm, 22 cm and 19 cm long. I found that they are
I deadly weapon and extremely dangerous. I
J J
21. Therefore, for Charge 2, I consider the appropriate starting
K point to be one of 12 months’ imprisonment. K
L L
22. Mr Wong asked the sentence in Charge 2 to run concurrently
M with that of Charge 1. However, as these were separate and distinct acts, I M
do not see any reason to pass wholly concurrent sentence.
N N
O 23. The defendant pleaded guilty and he would get a one-third O
reduction in sentence for his pleas. Other than the pleas, I do not see any
P P
strong mitigating factor which would warrant any additional reduction in
Q sentence. Q
R R
24. For Charge 1, 5 years reduced by one third is 40 months.
S S
25. For Charge 2, 12 months reduced by one third is 8 months.
T T
U U
V V
-7-
A A
B B
26. These were separate acts and separate offences. Sentences
C should in principle run consecutively. However, applying the totality C
principle, I order that 5 months of the 8 months’ term for Charge 2 is to run
D D
consecutively with the term of 40 months for Charge 1, making a total of
E 3 years 9 months’ (45 months) imprisonment for Charge 1 and 2. E
F F
G G
H H
( Amy Chan )
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V