HKSAR v. Tsang Kin Nam

HCCC 147/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 147 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has been convicted on his own plea of one charge of attempted robbery. The guilty plea was entered at the Eastern Magistrates’ Court on 18 March 2016.

The Summary of Facts which has been admitted by the defendant provides, inter alia, that at about 9.24 am on 2 October 2015, at the Hang Seng Bank, Shop 18, Ground Floor, Lucky Plaza, Wang Pok Street, Sha Tin, New Territories, the defendant, in cap and mask, presented to the teller, a Miss Yiu (“the victim”), at the bank teller counter a note saying: “Robbery with gun”. At the same time, he inserted a gun-like object, partially wrapped in a towel, through the counter window and pointed it at the victim. The victim was so scared that she stood up and retreated. The defendant shouted repeatedly at her, asking her to bring out all the money. She, however, was in shock and failed to react. The defendant then fled.

On 15 October 2015, the defendant was arrested. Under caution, he admitted that he only did that as he had no way out. It had nothing to do with his family.

Later, arriving at the defendant’s home, he voluntarily led the police to seize items he had used during the attempted robbery, namely, clothing that he wore, an airgun, the towel used to wrap it and a box of masks.

At a cautioned video-recorded interview, the defendant admitted that:

(1) he owed a debt of around HK$380,000 to finance companies and he had to repay around $30,000 on 2 October 2015;

(2) he thus, on 1 October 2015, decided to rob a bank on 2 October 2015;

(3) on the material morning, he brought with him a cap, a mask, a spare shirt for change after the robbery to avoid detection, and a toy airgun of his son. For fear that others can see it was a toy gun, he wrapped it partially with a towel;

(4) he also prepared a note saying: “Robbery, have gun, bring out all the money”;

(5) he picked the Hang Seng Bank located at Lucky Plaza because its location made it convenient for him to flee;

(6) he put on the mask before entering the bank;

(7) he presented the note to the bank teller and pointed the toy gun at her to threaten her;

(8) as she had no reaction, he fled; and

(9) he then took a taxi to a shopping mall, where he disposed of the note and his shirt, and put on his spare shirt prepared.

Forensic firearm examiner confirmed that the airgun seized from the defendant’s home was a pressurised gas-powered airgun designed to discharge 6 millimetre calibre plastic balls. No test shooting was conducted because no cartridge was available.

By way of personal background, the defendant is 60 years of age. He was born in Zhuhai, China, in May 1956. The defendant has received education up to Form 3 level in Hong Kong. The defendant got married with his wife in 1989. He has a 26-year-old daughter and a 22-year-old son. At the time of his arrest, the defendant worked at the To Fuk Shan Temple as a worker on a monthly salary of around $10,000. The defendant’s wife worked as a part-time cleaner on a monthly salary of about HK$5,000.

The defendant has one previous conviction of gambling in a gambling establishment. That was recorded in 1979.

In mitigation, Mr Alex Ng submitted on behalf of the defendant that he is remorseful.

I was told that the defendant got into financial difficulty in May 2015, when the defendant’s employer ceased the practice of passing to the defendant tips from customers. This resulted in a reduction in his monthly salary from around $14,000 to around $10,000.

Also, he had to borrow from a finance company for his father’s funeral.

As a result of all of that, he owed finance companies the total sum of around HK$380,000 by the time of the offence. Out of desperation, the defendant committed the offence in question.

Mitigation letters from respectively the defendant, his mother, his wife, his children, his two brothers and one of his ex-colleagues have been submitted to the court. Their contents have been duly noted.

However, as has been pointed out by Yeung JA (as he then was) in the case of Secretary for Justice v Lee Chun Ho Jeef [2009] 6 HKC 471 at paragraph 36, for an offence of robbery with the use of imitation firearms, personal difficulty and/or financial hardship are not mitigation factors. Such robberies committed at banks demand severe deterrent sentences.

The defendant has been convicted on his own plea of one charge of attempted robbery. The attempted robbery committed by the defendant has several aggravating features. First, the defendant attempted to rob a bank. Second, an imitation firearm was used in the attempted robbery. Third, the defendant had, through the counter window, pointed the gun-like object at the victim, understandably causing her to be very scared and shocked.

In R v Yu Tai Wing [1995] 1 HKC 837, at 839I to 840C, it was held by the Court of Appeal that for policy reasons, in the case of bank robberies, jewellery shop and goldsmith shop robberies, security van or payroll robberies and the like, no distinction should be drawn between cases where genuine firearms were used but not discharged, and those in which imitation firearms were used.

Further, on the facts of the present case, clearly no distinction should be drawn from the fact that the offence was an attempt, rather than the substantive offence of robbery.

In the Yu Tai Wing case, it was further held that where a robber embark on a robbery alone with an imitation firearm in a public place and inflicts no injury on his victim, the appropriate starting point for sentence, after trial, should be 10 years’ imprisonment.

This is to be contrasted with a bank robbery or an attempted bank robbery. In HKSAR v Pau Lai Sing [2010] 3 HKLRD 233, at paragraph 18, it was held by the Court of Appeal that robberies of banks, jewellery shops and other establishments in possession of large amounts of cash or valuable items were very serious offences and must be deterred. The Court of Appeal went on to hold that for a robbery upon a bank or a jewellery or similar shop with the use of an imitation firearm, the normal starting point after trial was one of 12 to 15 years’ imprisonment, which took into account the important aggravating feature identified that in a robbery involving the use of an imitation firearm, law enforcement officers might have to resort to and use their own weapons, thus exposing the public to grave danger.

In all the circumstances of the present case, and taking into account the authorities cited above, I regard the appropriate starting point for sentence should be 12 years’ imprisonment.

I shall give the defendant the full one-third discount for his timely guilty plea.

The defendant is accordingly sentenced to 8 years’ imprisonment.