HKSAR v. NGO VAN NAM

DCCC909/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 909 OF 2012

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HKSAR
v.
Ngo Van Nam

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Before: H H Judge Geiser

Date: 9 November 2012 at 12.39 pm

Present: Ms Lisa Go, PP of the Department of Justice, for HKSAR
Mr Philip Li, of Ho Tse Wai, Philip Li & Partners, assigned by the Director of Legal Aid, for the Defendant

Offence: (1) Robbery (搶劫罪)
(2) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授權而留在香港)

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to two charges, the first being an offence of robbery, contrary to section 10 of the Theft Ordinance, Cap.210, Laws of Hong Kong, the particulars being that you on 13 March of this year at Fu Tei Road in Tuen Mun, New Territories,together with two others robbed Lio Man-kin of a wristwatch, a mobile phone, a ring and cash of HK$1,400. The 2nd charge is an offenceof illegally remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115, Laws of Hong Kong, the short particulars being that you landed here unlawfully on 25 July 2012 without the permission ofthe Director of Immigration.

2. The Summary of Facts which you have admitted are quite simple and establish that you around 10 pm at night, together with two ofyour friends, also Vietnamese people, hired a taxi and told the driver, the victim, to take you to Fu Tei Road in Tuen Mun. Whenthe taxi reached its destination, one of your friends grabbed the victim’s neck from behind, brandished a knife and pointed ittowards his neck and declared robbery.

3. You sat in the left back seat and told the driver not to move whilst the one sitting in the front passenger seat told the victimto take out all the money. Cash was taken together with the victim’s watch, mobile phone and a silver ring, you all then fled.

4. It was on 25 July of this year, some four months or thereabouts later, that you were intercepted and stopped outside Kwai Fong MTRStation. You failed to produce any identification and your illegal status in Hong Kong was confirmed. You told the police thatyou had sneaked into Hong Kong two days beforehand, and you also told them that you had committed the robbery, being the subjectmatter of Charge 1, way back in March. You gave them details of this robbery.

5. You are 26 years of age. You come from Vietnam where you live with your family and I am told that you have no previous convictionsin Hong Kong.

6. Mr Li, on your behalf, has stressed two matters for me to take account of in sentencing you, first of all is your plea of guilty;and secondly, the fact that you volunteered the information to the police regarding the robbery that had taken place in March, inthe absence of which your involvement in this robbery would never have come to light. I will take both of these matters into accountin sentencing you.

7. Obviously, taxi robberies are extremely serious. The courts have said time and again that taxi drivers are entitled to look tothe courts for protection; they are vulnerable and particularly so at night.

8. In the circumstances of this case, whilst I accept that it was not you who displayed the knife to the victim, this was a joint enterprisebetween the three of you and you are all equally culpable. This must have been a frightening experience for the victim in this case,it is only fortunate that no injuries were suffered.

9. Regarding sentence, for the 1st charge, the case of R v Tran Van Anh [1993] 2 HKCLR 122, is instructive. In that case the taxi driver’s hair was pulled and a sharp weapon pointed at his throat. He sustained no injuriesand his wallet was taken containing HK$550. The trial judge took a starting point of 8 years’ imprisonment. The Court of Appealreduced the starting point to one of 6 years but in doing so went on to say that taxi drivers are particularly vulnerable to robbery,especially those who ply for hire late at night or in the early hours of the morning, or who pick up or drop passengers in quietlocations and that henceforward, sentences of 7 years’ imprisonment after a contested trial would be justified for offences similarto those of the present case.

10. In another case Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, the taxi driver’s neck was grabbed and a pair of scissors pointed at him. The trial judge adopted a starting point of 6 years’imprisonment but indicated that 7 years could have been adopted on the facts of that case.

11. Taking everything into account, I will adopt a starting point of 7 years’ imprisonment on the 1st charge of robbery. I willdiscount that by one-third, to take account of your plea of guilty, coming to 56 months’ imprisonment on Charge 1.

12. I will further discount this by 3 months, to take account of the fact that you volunteered the information regarding the detailsof this robbery to the police, coming to 53 months’ imprisonment on Charge 1.

13. Regarding Charge 2, the normal sentence is one of 15 months’ imprisonment and I see no reason to depart from that sentence. Undernormal circumstances, this should be ordered to run consecutively to the sentence on Charge 1, but due to the question of totalityof sentence, I order 10 months of the sentence of the 15 months to run consecutively to the sentence on Charge 1, coming to an overallsentence of 5 years and 3 months’ imprisonment in all.

H H Judge Geiser
District Judge