HKSAR v. Li Wai Hung and Others

DCCC 197/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 197 OF 2015

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REASONS FOR SENTENCE

D1 to D8 were charged with an offence of "Conspiracy to rob". D1 to D3 and D5 to D8 pleaded guilty to the charge. The prosecution offered no evidence against D4. The charge against him was dismissed.

2.In short, the 7 defendants had executed a plan to rob a staff member of a foreign exchange company, who was carrying with her cash in various currencies (equivalent to HK$6.4 million in total).  Police officers were laying ambush at the scene and apprehended the culprits when the robbery took place.  The victim suffered no monetary loss.

Summary of Facts

3.Madam HUNG (PW1) was employed by a foreign exchange company as a courier.  She often had to travel from Lo Wu to Central.

Surveillance Evidence

4.In September 2014, the Police conducted surveillance on D1 to D3, D5 to D8, male NGAN Chi-lung and a male wanted person (WP).  Their octopus card records, phone call records and CCTV footage of various locations were obtained and analyzed.

10 September 2014

5.At 2:15 pm, D8 entered Lo Wu train station at the same time as PW1.  Following that immediately, there were telephone exchanges between WP and D5 to D8.

6.At 3:16 pm, PW1 left Central MTR station.  Following that immediately, there were telephone exchanges between WP and D5 to D7.  About 3:30 pm, D5 and D7 entered Central MTR station.

11 September 2014

7.At 9:42 am, D8 entered Lo Wu train station at the same time as PW1.  Following that immediately, there were telephone exchanges between WP, D5, D6 and D8.  At 9:46 am, D3 and D6 entered Fanling train station.

8.From about 10:00 am, D1, D5 and D7 were loitering in Central.  At 10:53 am, PW1 left Central MTR station.  Within 2 minutes, D3, D6 and D8 also left the station.  Between 10:00 and 10:53 am, there were numerous telephone exchanges between D1, D5 to D8 and WP.

17 September 2014

9.At 10:02 am, PW1 entered Lo Wu train station.  Four minutes later, WP was following PW1 and boarded the same train with her.  D8 was also at the station and boarded a train.  There were telephone exchanges between WP, NGAN, D1, D3 and D5 to D8.  At 10:41 am, D1, D2, NGAN and D7 were gathering in Central.

10.PW1 went to Mongkok instead of Central.  D3 and D6 followed her in Mongkok.  D8 joined in later.

23 September 2014 (The Robbery)

11.At 9:30 am, PW1 received the money to be brought to Central from Lo Wu.  She entered the paid area of Lo Wu train station at 9:37 am.  D8 entered the station at the same time.  He followed PW1 and boarded the same train with her.  Following that, D8 phoned WP, who then phoned D6.  There were also telephone exchanges between WP, D2, D3 and D5 to D8.

12.About the same time, D1, NGAN, D5 and D7 were gathering at a restaurant in Central.  D2 joined them later at 9:59 am.

13.At 9:52 am, WP boarded a train at Sheung Shui.  PW1 was on that train.  At 9:56 am, D3 and D6 boarded the same train at Fanling.

14.At 10:24 am, PW1 arrived at Kowloon Tong.  D3 and D6 followed her.  Ten minutes later, PW1 alighted from the train and boarded another one at Mongkok.  D3 and D6 followed her all the way to Central.

15.At 10:31 am, D1, NGAN, D5 and D7 were loitering near Central MTR station.  There were numerous telephone exchanges between NGAN, WP and various defendants.

16.At 10:45 am, PW1 arrived at Central MTR station and walked towards Exit C.  D1 to D3 and D6 followed her. According to PW1, as she went up the stairs at Exit C, two men rushed past her on the left.  One grabbed her trolley and the other, her nylon bag which contained cash in various currencies (equivalent to about HK$6,437,980 in total).  PW1 fought for her nylon bag and shouted "robbery".  She lost her balance and fell on the floor but did not suffer any injury.

17.PC 4976 was carrying out surveillance duty at Exit C.  He was 7 metres away from D1.  He saw D1 walking quickly towards PW1 from behind.  D2 then suddenly dragged PW1's trolley hard 2 to 3 times with his right hand, whilst D1 struggled with PW1 at her back.  PW1 fell backward and shouted for help.

18.PC 2034 was also carrying out surveillance duty at Exit C.  He was 10 metres away from D2.  He saw D2 dragging PW1's trolley (which contained her nylon bag) with his right hand and pushing PW1 away with his left hand.  At the same time, D1 pulled PW1 from behind, causing her to fall backward.  D2 tried to flee with the trolley.

19.D1 and D2 were immediately subdued by police officers standing by in the vicinity.  PW1 managed to recover her nylon bag and all the cash remained intact.  Her trolley was broken as a result of the struggle.  At the same time, D3, D5 to D7 and NGAN, who were all in the vicinity, were also arrested by police officers laying ambush nearby. D8 was later arrested at Lo Wu Control Point.

Admissions

20.D1, D2 and D7 made some brief admissions under caution at the scene.  In their respective video recorded interviews, D1 and D2 each admitted that they were asked to assault someone for a monetary reward.  D3, D5, D6 and D8 did not make any material admissions. Only D7 had described in details the plan to rob a woman of her bag, which he understood to contain money. 

Mitigation

D1

21.He is 28, single and has a clear record.  He worked as a waiter earning $9,000 to $10,000 per month.  Mr. Beel informed me that D1 met D7 through playing on-line games.  D7 asked if D1 was interested in earning some quick money.  At that time, D1's grandmother was ill, and he wanted to earn some extra cash.  Unfortunately, D1's grandmother passed away while D1 was remanded in jail custody.  Mr. Beel submitted that D1 first learned of the plan on 11 September 2014.  He was offered $5,000 but received only $100.  D1 had no idea how much money was involved.  Mr. Beel stressed that unlike many robberies (the plans of which were to incapacitate the victim first), the plan in the present case was not to cause harm to PW1. Minimum force was intended.

D2

22.He is 23 and single.  He has 4 conviction records, which include 1 "Conspiracy to rob" offence[1] and 1 "Theft" offence.  At the time of the present offence, he was subject to a suspended sentence of 1 month imprisonment for "Resisting a police officer". Mr. IU submitted that D2 did not know most the culprits; he only knew D7, who later introduced him to a few others.  In the present case, D2 1^st appeared on 17 September 2014.  His role was to do the taking of the cash with no or minimum force and without weapons.  D2 admitted pushing PW1's forehead.  He received only $100 on the occasion when the target did not appear.

D3

23.He is 64 and married with a daughter.  He has 1 conviction record (dated 1981) which involved multiple offences including "Wounding", "Robbery", "Theft" and a few other serious ones.  He was sentenced to a total of 10 years' imprisonment.  Mr. Grounds informed me that D3's previous offences all took place in the same High Court case.  D3 is a retired electrician.  He has been trouble free and hardworking since his release from prison in about 1987.  Regarding the present case, Mr. Grounds submitted that D6 owed D3 money and D3 wanted to seek repayment from D6.  D6 suggested D3 to come along.  D3 was only concerned with getting his money back.

D5

24.He is 28 and single.  He has 4 conviction records, which include 4 "Burglary" offences[2] and 1 "Wounding" offence.  He worked at construction sites earning $10,000 per month.  Mr. IU submitted that D5 did not play a major role in the present case.  He did not know how much money was in PW1's nylon bag.  Furthermore, except the phone call records, there is not much evidence against D5; not even his admissions.  The case against D5 is not strong.

D6

25.He is 67 and married with no children.  He has 10 conviction records, which include 2 "Robbery" offences[3] and a few violence-related offences.  Mr. LAM informed me that D6 was unable to find a job after his release from prison in 2012.  His wife resides in the mainland.  Mr. LAM submitted that D6 did not know PW1 was carrying so much cash with her.  He made no physical contact with PW1.  Mr. LAM further submitted that D6 was not the mastermind of the robbery; WP was.  D6 was supposed to receive $20,000 for what he did.

D7

26.He is 23, single and has a clear record.  He was a construction worker earning $15,000 per month.  Mr. Dunn submitted that D7 was approached by D5 and D6 to be a lookout for a reward of $10,000.  He did not know how much money was involved.  D7 foolishly believed that acting as a lookout was not really committing a robbery.  He was only a foot soldier and did not even take part in following PW1.

D8

27.He is 59 and divorced with a daughter (aged 14).  He has 14 conviction records, which include 5 "Robbery" offences[4] and 1 "Conspiracy to rob" offence[5].  D8 was an odd job logistics worker earning $8,000 per month.  He needs to support his wife and daughter.  Mr. SO informed me that D8's father (aged 90) was hospitalized for a stroke and other health problems in the mainland in September 2015.  D8 had to bear the medical expenses.  Regarding the present offence, Mr. SO submitted that D8 was recruited by WP to follow PW1 for a reward of $1,000 per day.  He accepted the offer due to financial hardship.  D8 had no idea how much cash PW1 was carrying with her.

Sentence

28.In the course of mitigation, all defendants, through their respective counsel, tried to persuade the court that someone else was the instigator/mastermind of the robbery.  For the purpose of sentencing, I need not determine who the ring leader was.  As revealed in the Summary of Facts, what they did is clear.  Although they played different roles, in my view, they each contributed to the planning and/or execution of the robbery and are equally culpable.  There is no need to distinguish their roles or to apportion their criminality.

29.I accept that the present case should not be regarded as an armed robbery; thus the sentencing guidelines stipulated in MO Kwong-sang v The Queen [1981] HKLR 610 are not applicable. On the other hand, all 7 defendants acted in concert with another accomplice to carry out an orchestrated plan to rob PW1 (a target identified in advance as opposed to a random one), knowing that she was carrying with her a substantial sum of cash[6].

30.Mr. Beel and Mr. Grounds have made thorough submissions on the proper starting point by analyzing the relevant cases.  I thank them for their assistance.  They have also stressed that from PW1's perspective, only 2 persons robbed her.  Furthermore, no weapons were used and the violence involved was only pulling, shoving and snatching of her nylon bag.  PW1 did not sustain any injury and no cash was stolen.

31.I have reminded myself of the Court of Appeal's decisions in HKSAR v TING Chiu & another [2003] 3 HKLRD 378 and HKSAR v LAM Chun Nam [2008] 2 HKCLRT 137 regarding the sentencing of unarmed robberies.  Having considered all aspects of this case, I take the view that the basic starting point should be 4 years' imprisonment, to be adjusted according to the background of each defendant.

32.D1, with the guilty plea, I sentence him to 32 months' imprisonment.

33.D2 has a borderline criminal record.  I would not raise his starting point.  With the guilty plea, I sentence him to 32 months' imprisonment.  At the time of the present offence, he was subject to a suspended sentence for a violence-related offence; and only about half of the suspension period had lapsed.  Thus, I order the suspended sentence in TWCC 1601/2013 be activated.  D2 shall serve the entire sentence of 1 month, consecutive to the sentence in the present case.

34.D3, I accept that he has behaved himself for over 25 years.  I would not raise his starting point.  With the guilty plea, I sentence him to 32 months' imprisonment.

35.D5 has no similar convictions.  I would not raise his starting point.  With the guilty plea, I sentence him to 32 months' imprisonment.

36.D6, I cannot overlook his robbery convictions in 1981 and 1986.  His criminal records date back to 1977 when he was 28.  Since then, he continued commit crimes in each decade.  His last conviction (a drug offence) is dated 2005, for which he was sentenced to 11 years and 8 months.  It is plain that D6 did not learn his lessons.  I shall raise his starting point to 51 months to give a deterrent effect.  With the guilty plea, I sentence him to 34 months' imprisonment.

37.D7, with the guilty plea, I sentence him to 32 months' imprisonment.

38.D8 has a total of 6 robbery-related convictions in 1 District Court case and 3 High Court cases, with the last one dated 1995.  I am aware that he has no more convictions since presumably his release from prison in the early 2000s.  I must raise his starting point to 4.5 years' imprisonment for his being a repeated offender. With the guilty plea, I sentence him to 36 months' imprisonment.