HKSAR v. ZHUANG XIAOQIANG

DCCC 413/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 413 OF 2013

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HKSAR
v
Zhuang Xiaoqiang
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Before: HH Judge Browne

Date: 3 June 2013 at 10.45 am

Present: Ms Mickey Fung, SPP of the Department of Justice, for HKSAR
Mr Chiu Siu-keung Donny, of Chow, Griffiths & Chan, assigned by the Director of Legal Aid, for the defendant

Offence: Attempted robbery (企圖搶劫罪)

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Reasons for Sentence

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1. The defendant pleaded guilty to a charge of attempted robbery. The offence was committed on 7 February 2013 at the staircase betweenthe 3rd and 4th floor of No. 244 Sha Tsui Road, Tsuen Wan.

2. The facts surrounding the robbery were that a Mr Fok Chun-man, I will call him Fok, lived at one of the units in the building atNo. 244 Sha Tsui Road.

3. The victim in this case, a Mr Yim Yin-fei, I will call him Yim, wanted to return a previously borrowed Hang Seng Bank ATM card toMr Fok. Yim visited Fok at his residence and left in the early hours of 7 February 2013. After leaving Fok’s residence, Yim startedto walk down the staircase and was confronted by the defendant.

4. The defendant was wearing a jacket and a surgical mask at that time and had concealed himself in the staircase. He grabbed Yim’sneck when he saw Yim and declared robbery. The defendant was holding in his hand a folding knife with a 7 centimetre long blade,and during a struggle. Yim sustained certain injuries. Subsequently, Fok arrived at the scene of the robbery and he and Yim chasedafter the defendant.

5. Yim lost sight of the defendant for a while but later caught sight of him again in the vicinity shortly afterwards. At that timethe defendant had removed his jacket and taken off his surgical mask, therefore Yim was able to see his face. Yim again lost sightof the defendant and reported the matter to the police.

6. The police made a search of the area and located the defendant about an hour after the robbery. When they saw the defendant hewas sitting at a staircase of another building. There was some vomit near him and the defendant and the defendant told the officersthat he had heart pain and that he could not breathe. The defendant fell to the ground and said nothing further and he was takento hospital by ambulance.

7. The defendant under caution later at the police station admitted the offence. He stated that he had been asked by Fok to rob thevictim. He told the police that Fok owed him some money and that Fok had said that if he stole the ATM card Fok would be in a positionto repay the debt that was owed to the defendant. He said that Fok had given him the jacket and told him to buy a surgical mask. He said that the knife he used was in the pocket of the jacket.

8. The victim in this case fortunately did not suffer any permanent injury. He is a right-handed person and he sustained two minorcut wounds and there was immediate swelling and pain over his right wrist as a result of the attack upon him.

9. As a result of the persistent swelling he was examined by a doctor again on 18 February and admitted to hospital because of a suspectedsubluxation of the bases of the 4th and 5th metacarpals. On examination, there was a right dorsal bony hard swelling over the basesof the metacarpals. However, finger movement was normal and the distal sensation was intact. A closed reduction was carried outat the bedside and a right side short arm slab was applied. Open reduction and internal fixation with K wire was done on 21 February.

10. Post-operatively neurovascular status of the right hand was normal and he was discharged on post-operation day 1 with a right handbrace. On subsequent follow-up the wound was found to have healed and the X-ray showed that the alignment had been maintained. The K wire was removed on 3 April 2013.

11. The defendant has a clear record. He was born in China and he came to Hong Kong in 2009 when he was aged 21, he is now aged 25. He has previously worked as a hair stylist and as a cook and a decorator but was unemployed since October 2012. I am told thathe suffers from heart problems and that he lives in Tsuen Wan together with his mother and younger brother. Unfortunately, his fatherpassed away earlier this year. I am also told that his mother does not enjoy the best of health.

12. I am told that when he was in employment as a decoration worker he earned about $8,000 per month, and since his father’s demisehe has been the sole breadwinner of the family. However, since October 2012, because of unemployment, his ability to earn moneyhas decreased.

13. As regards the background of the offence itself, I am told that the defendant said that he lent money, $1,600, to Fok, and duringthe Chinese New Year he needed that money to be repaid and Fok said that if he robbed the victim of the Hang Seng Bank card thathe would then later repay him the debt that was owed.

14. There is some confusion about what the court has been told as to exactly which ATM card was to be stolen because clearly on thefacts as presented by the prosecution, the ATM card had been returned to Fok and subsequently Yim left Fok’s flat. However, thedefence counsel says his clear instructions are that the defendant was intending and was told by Fok to steal from the victim anATM card.

15. Placed before the court there is a letter from the defendant in which he says that he has had time in the last 3 months whilst inprison to reflect on his situation and he is now very remorseful and sorry for the anxiety which he has caused to his family. Hesaid he has fallen in with some bad friends who led him into this offence.

16. There is also before the court a letter from a Madam Lam, a neighbour of the defendant, who describes the defendant as being a diligentperson, who has worked hard to support his family. She said that he seldom went out, and that before he passed away his father’shealth condition had deteriorated and that his mother was also not in good health. She said she was aware that the family financeshad deteriorated, and she was aware that the defendant was very remorseful for this offence. She has asked for leniency on his behalf.

17. As regards what has been told to the court on behalf of the defendant, police have made efforts to locate Fok since the defendant’sarrest and since the defendant told the police about Fok’s involvement in this robbery, but those efforts have not so far beensuccessful.

18. The main points in mitigation in this offence are that, of course, the defendant has pleaded guilty and co-operated with the police. He has given a full story to the police about his involvement in the matter and also as to the role played by Fok. The victim hassuffered no loss and there were fortunately no permanent injuries sustained by the victim, and the defendant is very remorseful.

19. It is, in my view, fortuitous that the victim did not sustain more serious injuries given the nature of the wounds inflicted uponhim. He was required to wear a right side short arm slab and a K wire for almost 2 months.

20. The usual starting point for an armed robbery is a sentence of 5 years’ imprisonment. In this case, I take the view that thereare no aggravating features so I see no reason to increase that starting point.

21. I am going to take the starting point of 5 years and reduce it to 40 months to reflect the defendant’s guilty plea.

Browne
District Judge