HKSAR v. Yang Xingyun

HCCC 64/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 64 OF 2016

_______________

_______________

______________________________

REASONS FOR SENTENCE

______________________________

Introduction

1.On 29 January 2016, the defendant pleaded guilty at committal in the Magistrate’s Court to a single offence of robbery, three offences of theft and three offences of obtaining property by deception.  He was committed to the High Court for sentence.

2.The particulars of the robbery charge were that the defendant between 17 and 18 March 2015, at a room of a hotel in Tsuen Wan, robbed a mainland Chinese female of one handbag, one wallet, one mobile phone approximately HK$1,100 cash, RMB3,600 cash and three credit cards (Charge 1). 

3.The particulars of the theft charges were that on three separate occasions on 18 March 2015 the defendant stole a chose in action, namely a credit balance in the sum of RMB4,000 from a Union Pay credit card issued by the China Merchants Bank (Charge2), a credit balance in the sum of HK$6,000 from a Union Pay credit card issued by the China Guangfa Bank (Charge 3) and a credit balance in the sum of HK$2,000 from a Union Pay credit card issued by the China Merchants Bank (Charge 4), property belonging to the mainland Chinese female. 

4.The particulars of the obtaining property by deception charges were that the defendant on three separate occasions on 18 March 2015, at three different shops at Landmark North, Sheung Shui, New Territories, dishonestly obtained from a staff member of each shop, one Apple iPhone 6 plus mobile phone (Charge 5), one pair of sport shoes and one black backpack (Charge 6) and one pair of sport shoes (Charge 7), with the intention of permanently depriving the owner of the shop by deception, namely by falsely representing that he was the genuine holder of a Union Pay credit card issued by the China Merchants Bank in the name of the mainland Chinese female and that he was authorised and entitled to use the credit card to make payment for the goods.

5.I have not mentioned the name of the mainland Chinese female victim because in a statement to the court from her she has mentioned the possibility of reprisal against her and also the impact this incident has had on her both physically and mentally.  I am of the view that the principle of open justice will not in any way be undermined by not mentioning her name, and in any event there is the countervailing consideration of minimising the ordeal that the victim has gone through as a result of the crime that has been perpetrated on her.

Agreed facts

6.The agreed facts giving rise to these offences are as follows.  At the time of the offence, the defendant was 53 years of age.  He was a resident of mainland China and entered Hong Kong on a two-way permit at 11:03 hours on 17 March 2015. 

Charge 1

7.At around 21:50 hours on 17 March 2015, a mainland Chinese female aged 32 years (the victim), who came to Hong Kong as a visitor, was about to enter her hotel room when she was suddenly pushed from behind into the room by the defendant.  The defendant held her by the neck and said in Putonghua “Behave”. 

8.Inside the room, the defendant grabbed her and threw her onto the bed.  He blindfolded her with long yellow adhesive tape and tied up her hands behind her back with a plastic zip tie.  Through an open area of the blindfold she observed the defendant switch on the television and turn up the volume.  She pretended to be sick and claimed that she could not take it any longer, crawling from the bed onto the floor.  The defendant picked her up and put her onto the sofa. 

9.It was at this stage that she was able to pull away the adhesive tape and run towards the door.  The defendant grabbed her and took her back to the sofa and then threw her onto the bed facedown whereupon he punched her on her back, head and hands. 

10.The defendant said that he did not trust her anymore and applied a substance to her eyes, causing irritation and preventing her from being able to open them.  The defendant again blindfolded her with adhesive tape wrapped around her head and tied up her hands tightly behind her back with plastic zip tie.  She was unable to see or move.  She begged the defendant to release her.

11.Some two hours later, she heard the sound of a door bell ringing.  She yelled out for help but there was no response.  The defendant punched her to the face and head and said “Dammit it’s from the television”.  He gagged her with a towel and tied up her feet with a plastic zip tie.  She pleaded with him to let her go but he ignored her.

12.Sometime later he asked her for the passwords and credit limits of the three credit cards he found inside her wallet.  Out of fear for her safety she gave him the information he demanded.

13.She again pleaded with him to set her free but he ignored her pleas.  He later poured some liquid into her mouth which she tried to spit out.  She begged him to release her and even offered to give him money to let her go but it brought no response. 

14.The defendant demanded she give him her mobile phone and the passwords to her bankcards which she did.  He told her that if he found anything wrong he would return and cut off her ears.

15.At about 07:25 hours on the following morning, she heard the door close and sensed that the defendant had left the room.  She loosened the restraints using a handle on the wardrobe and was able to get free. She immediately telephoned hotel staff for help.  Hotel staff came to her aid and found her blindfolded with her hands and legs tied.

16.She checked her belongings and found missing were her Prada handbag and its contents, consisting of her Gucci wallet, a Samsung mobile phone, cash of approximately HK$1,100 and RMB 3,600, two bankcards of China Merchants Bank and one bankcard of China Guangfa Bank (Charge 1).

17.The victim had been awake throughout the entire ordeal and was taken to hospital for medical treatment.  A medical examination found that her eyes were closed because of photophobia, she had multiple bruises over her scalp, frontal aspect and left side of her face, chin and both wrists, she had tenderness over her right shoulder which showed full range of active movement but she was complaining of pain, there was a large patch of corneal abrasion over her left eye which had a pH of 7, and an x-ray of her chest, shoulder and wrists revealed no bone fractures. 

18.She was given treatment to her eyes and transferred to an ophthalmology clinic where she was given further specialist treatment.  An examination revealed that her right eye was normal but her left eye showed corneal abrasion, and the fundus finding, showed commotio retinae (damage to the outer retinal layers) at the temporal peripheral retina.  Irrigation with normal saline was performed to both eyes until the pH was normal.  She was later seen on 18 November 2015, and a physical examination revealed that both eyes were normal without any permanent injury.

19.Upon an examination of exhibits by the government chemist, the drug, Estazolam, was detected on a wet towel and two wet pillowcases in the hotel room.  The drug was also detected in a blood sample taken from the victim of a blood level of 0.05 ug/ml.  According to medical expert evidence, the amount of the drug administered on the victim was approximately 1.4 to 2.2 mg and with this level of dosage, the victim may experience somnolence, headache and asthenia.

Charges 2, 3 and 4

20.Subsequent inquiries revealed that the defendant had withdrawn various quantities of cash from ATM machines with the credit cards stolen from the victim. 

21.At 07:37 hours and 07:41 hours on 18 March 2015, the sums of RMB 4,000 (Charge 2) and HK$6,000 (Charge 3) respectively were withdrawn by the defendant. 

22.Later at 07:58 hours on the same day, the sum of HK$2,000 (Charge 4) was withdrawn by the defendant.

Charges 5, 6 and 7

23.Later in the morning on the same day, on three separate occasions, the defendant fraudulently transacted in one of the credit cards he had stolen from the victim at various shops in Landmark North, Sheung Shui, New Territories.

24.At around 10:13 hours, the defendant attended a retail shop where he presented the stolen credit card to a sales assistant and successfully purchased an iPhone 6 plus mobile phone for HK$6,388 (Charge 5). 

25.At around 10:49 hours, the defendant attended another retail shop where he presented the stolen credit card to a sales assistant and successfully purchased a pair of sport shoes and one black backpack for the total sum of HK$1,087 (Charge 6). 

26.At around 10:55 hours, the defendant attended yet another retail shop where he presented the stolen credit card to a sales assistant and successfully purchased a pair of blue sport shoes for the sum of RMB599 (Charge 7).

27.On each occasion, the defendant falsely represented to the sales assistant in question that he was the genuine holder of the credit card and was authorised and entitled to use it to pay for the items purchased. 

28.The defendant admits the elements of Charges 5, 6 and 7 of obtaining property by deception.

Subsequent police investigation

29.In the course of the police investigation, CCTV footage was obtained from the hotel, the two banks where the defendant withdrew cash from the ATM machines and the three shops where he fraudulently transacted in the stolen credit card.

30.On the day the defendant arrived in Hong Kong, 17 March 2015, he is seen entering the hotel at 20:18 hours, a couple of minutes after the victim arrived there.  He is then seen loitering in the hotel lobby and later, on two occasions, he is seen tailing the victim, once at 20:36 hours when she checked into her room and the other at 21:51 hours when she returned having going out, following her into her room. 

31.The defendant stayed in the victim’s room for over 9 hours until 07:25 hours the next day, 18 March 2015, when he is seen leaving the hotel with the victim’s handbag.

32.From the CCTV footage at the banks and the shops on 18 March 2015, the defendant is seen wearing a baseball hat and a facial surgical mask which was clearly done in order to conceal his identity.

33.The defendant departed from Hong Kong at 13:32 hours on 18 March 2015.

Subsequent arrest

34.The defendant was put on the watch list and stopped when he visited Hong Kong on 7 April 2015.  Upon being arrested and cautioned, the defendant responded by saying “I haven’t been to Tsuen Wan area.”

35.Several items were seized from him, including a backpack believed to be the one that he bought with the victim’s stolen credit card. 

36.The defendant refused to take part in a formal identification parade and a non-consensual identification was arranged on 10 April 2015 at which the victim and one of the sale assistants positively identified him.

37.The defendant admits and accepts that at the material times he committed the robbery of the victim and the offences of theft and the obtaining of property by deception through the fraudulent use of the victim’s stolen credit cards.

Statement from the victim

38.The victim has submitted a statement concerning the impact this incident has had upon her.  It is intelligently and thoughtfully written and presents in detail what the she went through, and continues to go through, as a victim of this crime. 

39.An important part of the sentencing process is hearing from the victim and understanding the impact that the crime has had, and may continue to have, on him or her.  The importance of hearing from the victim is to properly understand the nature and circumstances of the crime and how the offending has impacted upon the victim at the time or subsequently. The effect of the offending on the victim goes to determine the gravity of the offence. 

40.The victim in her statement starts off by saying that she could not attend the court hearing because of the trauma that she went through here in Hong Kong at the hands of the defendant.  She says the experience remains a nightmare for her.  She says that the incident has caused her significant physical and psychological harm.  She lives in fear and suffers anxiety as a result of the incident and is paranoid about being followed, reliving the experience of being abducted, tied up, drugged and assaulted. 

41.Her privacy and private life have been violated and she is concerned that her personal belongings were gone through by the defendant.  She is particularly concerned about the defendant’s access to her mobile phone, which contained a lot of information about her and her family and she is worried that there might be reprisal against her and her family members.  She has a young child and elderly parents and she is very much concerned about them. 

42.She describes how a jellylike substance was applied to her eyes with layers of plaster being tightly bound over them.  She says that even though the physical damage to her eye has healed, she still feels pain and dryness.  To ease this sensation she needs to apply lubricant to her eyes.  She also describes the great pain she went through having her hands tightly tied for nearly 10 hours and how she still experiences pain as a consequence.

43.Finally, she describes how the incident and what she went through has not only traumatised her but also her family members, in particular her elderly parents who she explains were devastated by what had happened to her. 

Defendant’s background and mitigation

44.As is the usual practice, the police take an antecedents statement from a defendant, setting out his or her background and personal particulars, to assist the court when sentencing a defendant upon conviction. 

45.The defendant in the present case refused to provide such information. 

46.Mr Tse Hon Yuen, counsel for the defendant, submitted in mitigation that the only mitigating factor that could be properly taken into account in this case was the defendant’s plea of guilty.  He explained that the defendant accepted what the victim had said in her statement and extended his apology for the harm and trauma that he had caused her. 

47.A letter was submitted to the Court from the defendant, in which he expressed his deep regret for the offences he committed and extended his apology for the suffering he caused to the victim. 

48.He says that in order to make quick money he made a stupid mistake and committed the offence.  He claimed that he was under financial pressure in supporting a daughter who suffers with cerebral palsy and an ailing mother.  He says he also suffers with diabetes and this affected his ability to earn an income. 

49.Mr Tse elaborated that the defendant received university education in mainland China and graduated with a degree in Economics.  He said that he was previously married but divorced five years ago. He provides support for his daughter who is now 23 years of age. 

50.He said that the daughter is looked after by the defendant’s sister-in-law and he makes a contribution to her for his daughter’s upkeep of RMB 2,000 per month.  He also said that because the defendant suffers with diabetes his work had dropped off and this affected his monthly income which ranged from RMB 5,000 to 8,000.  He said the defendant was a self-employed freelance economist writing reports. 

51.Mr Tse also submitted that as to the substance that was administered by the defendant to the victim’s eyes, the defendant said that it was toothpaste, and as to the liquid the defendant forced the victim to swallow, the defendant said it was tap water. 

52.The latter submission was contrary to the agreed facts and this was queried.  After taking instructions from the defendant, Mr Tse confirmed that the defendant administered the drug, Estazolam, to the victim. He also confirmed that the defendant was equipped with the adhesive tape and the plastic zip ties for the purpose of carrying out the robbery.

Aggravating factors

53.This is a grievous case of robbery.  It was well planned and ruthlessly executed.  On the very day that he came to Hong Kong from mainland China, the defendant went to a hotel and monitored incoming guests.  He was identifying a potential victim for robbery. 

54.He chose a female who was alone.  He observed and stalked the victim.  He monitored her movements and made sure she was on her own before he followed her and forced himself into her hotel room.  He blindfolded her and tied her up.  He had equipped himself with adhesive tape and plastic zip ties which he used to tie up the victim. 

55.He threatened and assaulted her.  He assaulted her on several occasions and she sustained extensive bruising to her face, chest, hands and legs.  He administered a substance to her eyes, which he claimed was toothpaste, so she could not see and tried to drug her so that she would be rendered somniferous.  He had equipped himself with a drug which he forced the victim to swallow in order to subdue her. 

56.He forced her to disclose information so that he could use her credit cards.  He threatened to cut off her ears if the information about her credit cards was not correct. 

57.He had the victim tied up and bound for nearly 10 hours.  He waited until the next morning so he could use the credit cards to withdraw cash and purchase goods.  Immediately thereafter he left Hong Kong and returned to mainland China.

Sentencing

58.The leading sentencing guideline case for armed robbery is Mo Kwong Sang v R [1981] 1 HKLR 610.  In that case, it was suggested that the appropriate sentence in cases of armed robbery where the defendant carried a knife or other dangerous weapon which he displayed to his victim should be one of 5 years’ imprisonment; that where the robbery involved an invasion of private premises, a sentence of 6 years was appropriate; and that if physical violence, including tying up the victim, was used, a sentence of 7 years should be considered. 

59.It was also suggested that the sentences should be increased if there were other aggravating factors, such as an invasion of domestic premises during the night; the presence of more than one person in a group of robbers; threats made to victims; ill treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

60.When addressing the applicable tariff for armed robbery cases in Mo Kwong Sang, the Court of Appeal stated that the tariff was set for robbery where the culprit is armed with a knife or other dangerous weapon but not a firearm for which severer sentences were normally imposed. The Court of Appeal noted that the background cases that they used as a reference in fixing the tariff involved several culprits armed with knives with which they threaten their victims before robbing them and, in most cases, tying them up.  They said that armed robbery of this nature would cause terror to the victims as well as a loss of their possessions. 

61.I mention this because it is relevant that whilst a robber may not be armed with a weapon he may nevertheless use his physical strength or some other device or method, such as administering a drug, to terrorise and harm a victim.  See HKSAR v Zhang Wei [2014] 6 HKC 599 where instilling terror in a victim by whatever method is used is an aggravating factor. 

62.The circumstances I just described would amount to an aggravating factor that the court could take into account in any event. But it is significant to note that just because a weapon has not been used in a robbery does not mean that it should be treated more leniently because of that fact for there may be other factors that aggravate the robbery.

63.It has been held that the fact that a robbery involved more than one culprit was an aggravating factor because the threat or pressure exerted by a number of robbers on the victim were obviously more serious than those exerted by a sole robber.  See HKSAR v Ting Chiu and anor [2003] 3 HKLRD 378.  Similarly, in my view, where a robber is notably physically stronger than the victim and displays a preparedness to use physical violence, this too is an aggravating factor that may warrant an enhancement of the sentence.

64.In HKSAR v Wang Wei [2010] 5 HKC 45, the Court of Appeal (Stock VP and Beeson J) applied the reasoning in R v Sun Sheung Chung [1993] HKU 392, CACC 152/1993, 15 October 1993, unreported, that where bank account operating material was extracted along with other property in robbery offences, such a feature was a considerable element of aggravation for the following reasons.  First, the potential for loss of the victim and the potential for gain to the defendant were increased.  Secondly, the sense of violation suffered by the victim was heightened.  Thirdly, the period in scope of the criminal activity involved was extended.

65.I note that in the present case the victim was held captive for about 10 hours by the defendant in circumstances where she was subjected to harm and terror throughout the period.  This was a grievous feature in this case and was a serious element of aggravation.

66.In HKSAR v Obiagwu Oluchukwu Christian [2011] 1 HKC 453, the Court of Appeal (Yeung JA, Beeson and Lunn JJ) held that the fact that a robbery was committed by a visitor to Hong Kong could be regarded as an aggravating feature.  From the facts and circumstances of the present case, it is clear that the defendant came to Hong Kong for the specific purpose of carrying out a robbery.  He entered Hong Kong one day and left the next, and he clearly came here equipped and prepared to carry out the robbery in the circumstances that have taken place in this case.

67.A very serious aggravating factor is where a robber seeks to target a lone female.  The CCTV footage at the hotel was included in the agreed facts and was played in open court at the time of sentencing.  The defendant is seen on the CCTV footage loitering in the lobby and obviously for the purpose of identifying a potential victim.  The victim is seen on the CCTV footage checking in alone and going to her room.  The defendant is seen following her.  She then leaves her room and returns about an hour later with the defendant following her.  The defendant is seen on the CCTV footage tailing her and rushing quickly towards her as she opens the door of her hotel room. 

68.The use of physical violence on the victim, administering a drug to her and detaining her in the hotel room blindfolded and tied up for about 10 hours, were serious aggravating factors which reflect on the gravity of the offence.  Holding the victim captive for a period of about 10 hours, and in the circumstances in which it occurred, put the victim through a terrifying ordeal that seriously aggravated the offending.

69.To reiterate the aggravating factors that feature in the present case, they are as follows:

(1) The defendant, a resident of mainland China, entered and left Hong Kong for the specific purpose of carrying out the robbery.

(2) The robbery was well planned and premeditated.

(3) The robbery was committed in domestic premises, namely a hotel room where the victim was staying.

(4) The defendant monitored and stalked the victim.

(5) The defendant targeted a female visitor from mainland China to Hong Kong who was alone.

(6) The defendant was notably physically stronger than the victim and displayed a preparedness to use physical violence.

(7) The defendant used a substance to affect the sight of the victim and was equipped with a drug which he administered to the victim in order to subdue her.

(8) The defendant blindfolded and tied up the victim.

(9) The defendant held the victim captive for a period of 10 hours where he remained with her in the hotel room. Throughout this period she was blindfolded and tied up.

(10) The defendant on several occasions assaulted the victim causing her injuries to her eye and other parts of her body.

(11) The defendant threatened the victim with physical harm.

(12) The defendant obtained from the victim under threat information to access her credit cards.

(13) The victim suffered physical and psychological harm.

70.Although the defendant was not in possession of a weapon, he was in possession of equipment and a drug to subdue the victim and used his physical strength to harm her.  He held her captive for about 10 hours during which he intermittently physically assaulted and terrorised her.  The combined effect of these aggravating factors rendered this case of robbery a very serious one. 

71.In light of the foregoing, I will adopt a starting point of 11 years and 6 months’ imprisonment on the robbery charge. 

72.In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal (Lunn JA and McWalters J (now McWalters JA)) held that a 3 year starting point applied to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.

73.As for the theft charges, I will adopt a starting point of 2½ years’ imprisonment on each charge.  It involved the defendant on each occasion using the confidential banking information of the victim to access her credit card accounts and withdraw money.  The defendant used confidential banking information that he had forcefully extracted from the victim and the credit cards that he stole from her. 

74.As to the obtaining property by deception charges, I will adopt a starting point of 3 years’ imprisonment on each charge.  It involved the defendant on each occasion using one of the credit cards he stole from the victim at three different shops, passing him off as the holder of the credit card and purporting to sign the victim’s signature on the credit card slip. 

75.On the occasions of the theft and obtaining property by deception charges the defendant was wearing a baseball hat and a facial surgical mask clearly in an effort to conceal his identity. 

76.Bearing in mind all the facts and circumstances and the criminality involved as well as taking into account the totality principle, I will sentence the defendant as follows. 

77.As to Charge 1, I impose a starting point of 11 years and 6 months’ imprisonment which I reduce by one-third for the defendant’s plea of guilty to 7 years and 8 months’ imprisonment. 

78.As to Charges 2, 3 and 4, I impose a starting point on each charge of 2½ years’ imprisonment which I reduce by one-third for the defendant’s plea of guilty to 20 months’ imprisonment.  As the offences are of a similar kind and took place at about the same time, I will order that they be served concurrently.

79.As to Charges 5, 6 and 7, I impose a starting point of 3 years’ imprisonment which I reduce by one-third for the defendant’s plea of guilty to 2 years’ imprisonment.  As the offences are of a similar kind and took place at about the same time, I will order that they be served concurrently. 

80.Taking into account the totality principle in order to ensure a just and balanced sentence, I order that the concurrent sentences of 20 months’ imprisonment on Charges 2, 3 and 4 be served concurrently to the concurrent sentences of 2 years’ imprisonment on Charges 5, 6 and 7 and to the sentence of 7 years and 8 months’ imprisonment on Charge 1, and I also order that the concurrent sentences of 2 years’ imprisonment on Charges 5, 6 and 7 be served consecutively to the sentence of 7 years and 8 months’ imprisonment on Charge 1, thereby resulting in a sentence of 9 years and 8 months’ imprisonment. 

81.Accordingly, I sentence the defendant to 9 years and 8 months’ imprisonment.

Mr Harish Melwaney, SPP of Department of Justice, for HKSAR

Mr Tse Hon Yuen, instructed by S.H. Chan & Co., assigned by Director of Legal Aid, for the defendant