A A
DCCC 424/2015
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 424 OF 2015
C C
----------------------
D D
HKSAR
E v E
Cheung Sau-yan
F F
----------------------
G G
Before: Deputy District Judge E Lin
Date: 15 July 2015 at 4.13 pm
H Present: Mr Ivan Shiu, PP of the Department of Justice, for H
HKSAR
Mr Law Sai-man, Simon, of Tam & Partners, assigned by
I the Director of Legal Aid, for the defendant I
Offence: (1) Robbery (搶劫罪)
J (2) Possession of an offensive weapon in a public J
place (在公眾地方管有攻擊性武器)
K K
---------------------
L Reasons for Sentence L
---------------------
M M
1. In these proceedings, the defendant, Cheung Sau-yan,
N faces one count of “Robbery” (contrary to section 10 of the N
Theft Ordinance, Cap 210) and one count of “Possession of an
O Offensive Weapon in a Public Place” (contrary to section 33(1) O
of the Public Order Ordinance, Cap 245).
P P
2. He is convicted of both counts on his pleas and
Q Q
admission of facts.
R R
Facts
S S
3. At about 3.47 am on 10 March 2015, the defendant,
T T
wearing a cap and a mask, entered a convenience store in Sham
Shui Po and pointed a knife at a shopkeeper, demanding money.
U U
1
V V
A A
Thus threatened, the shopkeeper handed over cash of $1,600 to
the defendant, who fled after taking the same.
B B
C 4. At about 4.23 am on the 22nd day of March 2015, the C
defendant was intercepted by a police officer when he was seen
D acting suspiciously in Ki Lung Street, Sham Shui Po. The police D
officer found a knife with a blade of about 20 cm long in a
E E
paper shield (referred to as “the knife”), a pair of gloves, a
surgical mask and a recycle bag on the defendant’s person. He
F F
was also holding a cap in his right hand.
G G
5. He was arrested and taken back to the police station.
H Under caution, the defendant made the following admissions: H
I I
(i) he committed a robbery on 10 March 2015 by using
the knife to threaten the shopkeeper of a
J J
convenience store;
K K
(ii) at the time he was wearing the same cap, the same
L clothes, and carrying the same knife the police L
found on him;
M M
(iii)when the police intercepted him on 22 March 2015,
N N
he was planning to rob another convenience store
with the knife. The surgical mask and the cap
O O
were to be used to avoid being identified;
P P
(iv) he committed the offence because he had a gambling
Q problem and was heavily indebted. Q
R R
6. Subsequently, the shopkeeper of the convenience store
identified the knife found on the defendant’s person as the one
S S
used against him.
T T
U U
2
V V
A A
Sentencing Considerations
B B
Armed Robbery
C C
7. The first charge is an armed robbery. The defendant
D had used a knife against a victim. Although the amount involved D
is so small, it is not a relevant consideration.
E E
8. The Court of Appeal has set down a very clear
F F
sentencing guideline for the offence:
G G
“In a case of robbery where a knife or other dangerous
weapons are displayed to the victim, the appropriate
H H
sentence shall be 5 years’ imprisonment. The sentence
shall be increased if there are aggravating factors
I such as invasion of domestic premises during the night, I
the presence of more than one perpetrators, threats to
the victims, ill-treatment of elderly persons and
J children, or a multiplicity of offences of a similar J
kind. The fact that the offender had a previous clear
K
record should be given little account.” K
See Mo Kwong Sang v R CACC 359/1981 [1981] HKLR 610.
L L
M 9. The facts relating to the first charge fall fairly and M
squarely within the guideline. I can see no valid reason to
N depart from it. I will therefore adopt 5 years as a starting N
point.
O O
Possession of Offensive Weapon in a Public Place
P P
Q 10. Under section 33(2)(d) of the Public Order Ordinance, Q
offenders of 25 years or more shall be sentenced to imprisonment
R for no more than 3 years. Thus, a term of imprisonment is R
mandatory.
S S
11. In the present case, the defendant was carrying the
T T
knife in the early hours of the morning intending to reprise the
U robbery on another convenience store. He was stopped in time, U
but that was because of good police work.
3
V V
A A
12. My attention has been drawn to the case of HKSAR v Lau
B B
Wai Kuen HCMA 523/2011, and HKSAR v Chan Ming Lok HCMA 225/2009.
C I note that those are Magistracy Appeals. Although they are C
strictly not binding on this court, they do serve to offer a
D perspective of proper sentence. D
E 13. In the Lau Wai Kuen case, the appellant had a clear E
record. He was seen by the police to be concealing a piece of
F 18 inch copper water pipe inside a leg of his trousers. Under F
caution, he explained that he was going for a talk with the
G G
assailant of his brother, and the pipe was for his self-defence.
After trial he was sentenced to 6 months. The learned High Court
H H
judge hearing the appeal refused to interfere with the order.
I I
14. In the Chan Ming Lok case, the appellant was seen
J carrying a knife in Mong Kok some time before 2 am acting J
suspiciously. He stated he had it for self-defence. He was
K sentenced to 6 months after trial. The learned High Court judge K
did not find the sentence manifestly excessive, but decided he
L L
could not exclude the possibility that the appellant did intend
the same to be a weapon of defence rather than offence, and
M M
bearing in mind that the defendant had never been sentenced to a
N term of imprisonment and that “It was a relatively small N
domestic knife”, decided to substitute the sentence order with 4
O months’ imprisonment. O
P 15. The facts of the present case are more serious. The P
defendant had equipped himself with a knife to commit another
Q Q
robbery. The knife in question was a rather hefty piece of
weapon.
R R
S 16. On the facts of this case, I would adopt 9 months as a S
starting point.
T T
U U
4
V V
A A
Mitigating Factors
B B
17. The most important factor is of course his guilty
C plea. Therefore, for the robbery charge, the 5 years’ C
imprisonment is reduced to 40 months. The 9 months’ imprisonment
D for the possession of offensive weapon is hereby reduced to D
6 months.
E E
18. The defence lawyer in mitigation also gave a brief
F F
description of the defendant’s circumstances. He was aged 41 and
G had a clear record. He lived alone after his divorce. He used G
to be a security guard making $14,000 per month, but his
H gambling habit caused his downfall. H
I I
19. The matters stated above are not valid mitigating
factors. His clear record, as has been pointed out before,
J J
should not constitute mitigation.
K K
On Totality Principle
L L
20. I bear in mind what the Court of Appeal has said about
M totality principle: M
N N
“The purpose of the totality principle is to achieve a
just and balanced sentence that will not punish the
O defendant twice for the same conduct and will not be O
crushing to him. It is clear that a just and balanced
sentence is one that is not concerned solely with the
P rehabilitation needs of the offender, but also P
accommodates other relevant sentencing principles such
Q as retribution - that is, the need to punish an Q
offender for his misdeeds - where deterrence is needed
in respect of a particular offender or offence to
R appropriate deter him and others, the need to denounce R
a conduct, and where an offender preys upon the
community, to protect it from his depredations. It is
S S
well to remember that at times, a severe sentence will
be an appropriate sentencing response, and just because
T a sentence is severe does not mean that it is not just T
and balanced.”
U U
5
V V
A A
See the judgment of McWalters J in HKSAR v Lam Sze
Chung Stephen Cr App No 339/2012 [2013] 5 HLKRD 242.
B B
C 21. The two offences were committed on different days, C
although both are dealt with in one go. If anything, the fact
D that the defendant carried a knife with the intention of D
carrying out yet another robbery should be aggravation. Yet, in
E E
order to achieve a just and balanced sentence that will not
punish him twice without crushing him, I consider that ordering
F F
6 months of the sentence of the second count to run consecutive
G with the first would be the proper thing to do in the G
circumstances.
H H
22. The total sentence in this case therefore is
I I
46 months.
J J
K K
L (E. Lin) L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
6
V V
A A
DCCC 424/2015
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 424 OF 2015
C C
----------------------
D D
HKSAR
E v E
Cheung Sau-yan
F F
----------------------
G G
Before: Deputy District Judge E Lin
Date: 15 July 2015 at 4.13 pm
H Present: Mr Ivan Shiu, PP of the Department of Justice, for H
HKSAR
Mr Law Sai-man, Simon, of Tam & Partners, assigned by
I the Director of Legal Aid, for the defendant I
Offence: (1) Robbery (搶劫罪)
J (2) Possession of an offensive weapon in a public J
place (在公眾地方管有攻擊性武器)
K K
---------------------
L Reasons for Sentence L
---------------------
M M
1. In these proceedings, the defendant, Cheung Sau-yan,
N faces one count of “Robbery” (contrary to section 10 of the N
Theft Ordinance, Cap 210) and one count of “Possession of an
O Offensive Weapon in a Public Place” (contrary to section 33(1) O
of the Public Order Ordinance, Cap 245).
P P
2. He is convicted of both counts on his pleas and
Q Q
admission of facts.
R R
Facts
S S
3. At about 3.47 am on 10 March 2015, the defendant,
T T
wearing a cap and a mask, entered a convenience store in Sham
Shui Po and pointed a knife at a shopkeeper, demanding money.
U U
1
V V
A A
Thus threatened, the shopkeeper handed over cash of $1,600 to
the defendant, who fled after taking the same.
B B
C 4. At about 4.23 am on the 22nd day of March 2015, the C
defendant was intercepted by a police officer when he was seen
D acting suspiciously in Ki Lung Street, Sham Shui Po. The police D
officer found a knife with a blade of about 20 cm long in a
E E
paper shield (referred to as “the knife”), a pair of gloves, a
surgical mask and a recycle bag on the defendant’s person. He
F F
was also holding a cap in his right hand.
G G
5. He was arrested and taken back to the police station.
H Under caution, the defendant made the following admissions: H
I I
(i) he committed a robbery on 10 March 2015 by using
the knife to threaten the shopkeeper of a
J J
convenience store;
K K
(ii) at the time he was wearing the same cap, the same
L clothes, and carrying the same knife the police L
found on him;
M M
(iii)when the police intercepted him on 22 March 2015,
N N
he was planning to rob another convenience store
with the knife. The surgical mask and the cap
O O
were to be used to avoid being identified;
P P
(iv) he committed the offence because he had a gambling
Q problem and was heavily indebted. Q
R R
6. Subsequently, the shopkeeper of the convenience store
identified the knife found on the defendant’s person as the one
S S
used against him.
T T
U U
2
V V
A A
Sentencing Considerations
B B
Armed Robbery
C C
7. The first charge is an armed robbery. The defendant
D had used a knife against a victim. Although the amount involved D
is so small, it is not a relevant consideration.
E E
8. The Court of Appeal has set down a very clear
F F
sentencing guideline for the offence:
G G
“In a case of robbery where a knife or other dangerous
weapons are displayed to the victim, the appropriate
H H
sentence shall be 5 years’ imprisonment. The sentence
shall be increased if there are aggravating factors
I such as invasion of domestic premises during the night, I
the presence of more than one perpetrators, threats to
the victims, ill-treatment of elderly persons and
J children, or a multiplicity of offences of a similar J
kind. The fact that the offender had a previous clear
K
record should be given little account.” K
See Mo Kwong Sang v R CACC 359/1981 [1981] HKLR 610.
L L
M 9. The facts relating to the first charge fall fairly and M
squarely within the guideline. I can see no valid reason to
N depart from it. I will therefore adopt 5 years as a starting N
point.
O O
Possession of Offensive Weapon in a Public Place
P P
Q 10. Under section 33(2)(d) of the Public Order Ordinance, Q
offenders of 25 years or more shall be sentenced to imprisonment
R for no more than 3 years. Thus, a term of imprisonment is R
mandatory.
S S
11. In the present case, the defendant was carrying the
T T
knife in the early hours of the morning intending to reprise the
U robbery on another convenience store. He was stopped in time, U
but that was because of good police work.
3
V V
A A
12. My attention has been drawn to the case of HKSAR v Lau
B B
Wai Kuen HCMA 523/2011, and HKSAR v Chan Ming Lok HCMA 225/2009.
C I note that those are Magistracy Appeals. Although they are C
strictly not binding on this court, they do serve to offer a
D perspective of proper sentence. D
E 13. In the Lau Wai Kuen case, the appellant had a clear E
record. He was seen by the police to be concealing a piece of
F 18 inch copper water pipe inside a leg of his trousers. Under F
caution, he explained that he was going for a talk with the
G G
assailant of his brother, and the pipe was for his self-defence.
After trial he was sentenced to 6 months. The learned High Court
H H
judge hearing the appeal refused to interfere with the order.
I I
14. In the Chan Ming Lok case, the appellant was seen
J carrying a knife in Mong Kok some time before 2 am acting J
suspiciously. He stated he had it for self-defence. He was
K sentenced to 6 months after trial. The learned High Court judge K
did not find the sentence manifestly excessive, but decided he
L L
could not exclude the possibility that the appellant did intend
the same to be a weapon of defence rather than offence, and
M M
bearing in mind that the defendant had never been sentenced to a
N term of imprisonment and that “It was a relatively small N
domestic knife”, decided to substitute the sentence order with 4
O months’ imprisonment. O
P 15. The facts of the present case are more serious. The P
defendant had equipped himself with a knife to commit another
Q Q
robbery. The knife in question was a rather hefty piece of
weapon.
R R
S 16. On the facts of this case, I would adopt 9 months as a S
starting point.
T T
U U
4
V V
A A
Mitigating Factors
B B
17. The most important factor is of course his guilty
C plea. Therefore, for the robbery charge, the 5 years’ C
imprisonment is reduced to 40 months. The 9 months’ imprisonment
D for the possession of offensive weapon is hereby reduced to D
6 months.
E E
18. The defence lawyer in mitigation also gave a brief
F F
description of the defendant’s circumstances. He was aged 41 and
G had a clear record. He lived alone after his divorce. He used G
to be a security guard making $14,000 per month, but his
H gambling habit caused his downfall. H
I I
19. The matters stated above are not valid mitigating
factors. His clear record, as has been pointed out before,
J J
should not constitute mitigation.
K K
On Totality Principle
L L
20. I bear in mind what the Court of Appeal has said about
M totality principle: M
N N
“The purpose of the totality principle is to achieve a
just and balanced sentence that will not punish the
O defendant twice for the same conduct and will not be O
crushing to him. It is clear that a just and balanced
sentence is one that is not concerned solely with the
P rehabilitation needs of the offender, but also P
accommodates other relevant sentencing principles such
Q as retribution - that is, the need to punish an Q
offender for his misdeeds - where deterrence is needed
in respect of a particular offender or offence to
R appropriate deter him and others, the need to denounce R
a conduct, and where an offender preys upon the
community, to protect it from his depredations. It is
S S
well to remember that at times, a severe sentence will
be an appropriate sentencing response, and just because
T a sentence is severe does not mean that it is not just T
and balanced.”
U U
5
V V
A A
See the judgment of McWalters J in HKSAR v Lam Sze
Chung Stephen Cr App No 339/2012 [2013] 5 HLKRD 242.
B B
C 21. The two offences were committed on different days, C
although both are dealt with in one go. If anything, the fact
D that the defendant carried a knife with the intention of D
carrying out yet another robbery should be aggravation. Yet, in
E E
order to achieve a just and balanced sentence that will not
punish him twice without crushing him, I consider that ordering
F F
6 months of the sentence of the second count to run consecutive
G with the first would be the proper thing to do in the G
circumstances.
H H
22. The total sentence in this case therefore is
I I
46 months.
J J
K K
L (E. Lin) L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
6
V V