HKSAR v. Tsz Ka Hin and Another

HCCC 14/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 14 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.Prior to trial, the 1^st and 2^nd defendants pleaded guilty to the three counts of robbery on the indictment.[1]  The counts alleged that they jointly rob a 7-Eleven Convenience Store on 21 May 2015, a Sinopec Service Station on 25 May 2015 and a Circle K Convenience Store on 26 May 2015.  All robberies took place in the early hours of the morning from which they netted cash in the sum of $3,000, $2,500 and $2,806.20 respectively.

The offence of robbery

2.The robbery offences are contrary to section 10 of the Theft Ordinance, Cap 200, which fixes a head sentence upon conviction on indictment of life imprisonment. 

3.The offence of robbery is committed when a person steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.[2]

The background facts

4.In the early hours of 26 May 2015, the police had mounted an anti-robbery operation in the vicinity of the convenience store that the defendants had robbed.  The defendants were observed by the police leaving the scene in a private vehicle.  They were pursued by the police and eventually intercepted.  They were arrested and cautioned in relation to the three robberies which they admitted having committed.

5.A search of the vehicle uncovered a number of items that had been used in the three robberies.  The items were a spanner which both defendants admitted was used in the second robbery; three grey plastic gloves which both defendants variously admitted using in the three robberies; a 10 inch long knife and a blue cap which the 2^nd defendant admitted using in the second and third robberies; a facemask which the 2^nd defendant admitted wearing in the third robbery; a quantity of banknotes in the sum of $2,500 and a tray of coins in the sum of $306.20 being the proceeds of the third robbery; a white T-shirt that the 1^st defendant admitted wearing in the second robbery; an orange paper cutter that the 2^nd defendant admitted he had on him at the time of the first robbery; and a stun gun that the defendants admitted was used by the 2^nd defendant to commit the first robbery.

6.The two defendants are both 24 years of age. They had known each other for about a year prior to the robberies.  They agreed between them that they would commit robbery as they were short of money and had debts to pay.  They then embarked on these series of robberies.  The robberies were clearly preplanned, taking place in the early hours of the morning and targeting business establishments that would mainly deal in cash with a lone employee on duty.  Before they carried out each robbery, they would check out the store to make sure it would be an easy target for them to rob.  On the first and third robberies, the 2^nd defendant carried out the robbery while the 1^st defendant acted as a lookout and the driver of the getaway vehicle.  On the second robbery they both carried out the robbery. They split the proceeds of each robbery equally between them.

The first robbery

7.The first robbery took place at about 3:23 am on 21 May 2015.  The 1^st and 2^nd defendants had earlier on checked out the 7-Eleven convenience store on Ma Tin Road, Yuen Long.  At the time there were too many customers and they waited until later on when there were no customers in the store.  The 2^nd defendant wearing a white cap and a facemask entered the store carrying a shopping bag.  There was a sole male employee on duty behind the cashier counter.  The 2^nd defendant put the shopping bag on the counter and pulled out a stun gun.  The employee could hear the sizzling electric current from the stun gun of the fire.  The 2^nd defendant also held an orange paper cutter in his other hand.  He demanded that the employee put all the money from the cash register into the shopping bag.  The employee complied and the 2^nd defendant then ran out of the shop.  The amount of money stolen was $3,000.

The second robbery

8.The second robbery took place at about 2:30 am on 25 May 2015.  Earlier on the 1^st and 2^nd defendants had agreed to commit another robbery after the first.  They drove around and noticed that there was only one employee in the store of the Sinopec Service Station at Castle Peak Road, Yuen Long.  They agreed to rob the service station.  They changed clothes and each put on a facemask, a cap and gloves in order to carry out the robbery.  The 2^nd defendant was armed with a knife which was about 30 cm long and the 1^st defendant was holding a spanner.  There was only a sole female employee on duty at the store.  The 2^nd defendant pointed the knife at the female employee and declared robbery.  He demanded that she take out all the money from the cash register.  She opened the cash register and the 2^nd defendant took all the money that was there.  He passed a black recycle bag to the 1^st defendant in which to put the stolen money.  The defendants demanded the female employee to surrender her wallet but she said she did not have it.  They tried but were unable to open the safe in the store.  Before leaving, the 1^st defendant tied up the hands and covered the mouth of the female employee with adhesive tape.  The amount of money stolen was $2,500.

The third robbery

9.The third robbery took place at about 1:50 am on 26 May 2015.  The two defendants had earlier agreed to carry out yet another robbery.  They drove around and noticed that not too many people visited the Circle K Convenience Store at Coronet Court, Tin Shui Wai.  They assessed the location and planned an escape route after robbing the store.  They waited until there was no customer in the store to carry out the robbery.  The 2^nd defendant wearing a cap, a facemask, a pair of gloves and a jacket entered the store carrying a knife which was around 30 cm long.  There were two female employees on duty in the store.  He pointed the knife at one of the female employees and demanded that she take out all the banknotes from the cash register.  The female employee was terrified and did as she was demanded and took out $2,000 cash from the cash register and gave it to the 2^nd defendant.  He then demanded that the other female employee, who was working elsewhere in the store, come over and lift the coins tray from the cash register to see if there was any further money underneath it.  There was a $500 banknote under the tray.  The female employee gave him the banknote and the coin tray.  The amount of money stolen was $2,806.20.

Mitigation on behalf of the defendants

10.The 1^st defendant has 3 prior convictions.  One for theft in 2007 for which he was put on probation and the other two were driving offences in 2014. 

11.He was born in Hong Kong and left school after completing Form 5.  He thereafter worked variously as a cook, bartender and delivery worker.  He is single and at the time of the offences he was living with his parents and was unemployed. 

12.I have had submitted to me letters from the 1^st defendant and the minister of the church to which he belongs.  I was impressed with the letter from the 1^st defendant who expressed deep remorse and regret for what he has done.  He details his background and the problems he has with family members as a result of this matter.  It appears he has strong family support.  The minister informs me that he has known the defendant for more than 20 years and is hopeful that he will learn from this bad experience and live a better life. 

13.The 2^nd defendant has a prior conviction for possession of an offensive weapon in 2010 for which he was put on probation. 

14.The 2^nd defendant was born in Hong Kong and left school after completing Form 5.  He thereafter worked as a construction worker but was unemployed at the time of the offences.  He is single and at the time of the offences he lived with his parents.

15.I have had submitted to me letters from the 2^nd defendant and his mother.  The 2^nd defendant expresses his remorse.  He explains that his family has gone through considerable hardship with his father passing away recently with cancer and his mother being diagnosed with cancer.  The mother informs me of her support and concern for her son. 

Sentencing guideline for armed robbery

16.The sentencing guideline case for armed robbery is the well-known authority of R v Mo Kwong-sang [1981] HKLR 610.  In that case the Court of Appeal set out guidelines for the level of sentences to be imposed in armed robbery cases. 

17.The Court made it clear that the guidelines were applicable to cases where knives and other dangerous weapons were used but not to firearms for which severer sentences are normally imposed.  The Court went on to explain that the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be in the range of five years’ imprisonment.  The Court said that six years’ imprisonment would be appropriate if the robbery involved an invasion of private premises, including business premises, and that seven years’ imprisonment should be considered if any physical violence is used on any of the victims, such as tying them up.  The Court also emphasised that the suggested sentences should be increased if there are any other aggravating factors, and set out a list of such factors. 

18.Relevant to this case, other aggravating factors are where the invasion took place during the night, or in this case, where the three robberies was committed in the early hours of the morning; the presence of more than one person in the group of robbers, on the second robbery both defendants were present; threats made to victims, on all three robberies; and a multiplicity of offences of a similar kind; all three robberies were committed on quick succession after each other. 

19.I have borne in mind that I have to sentence the two defendants in relation to three offences of robbery that took place within a five day period. 

20.Both Mr Steve Chui, for the 1^st defendant, and Ms Diane Crebbin, for the 2^nd defendant, have addressed me on the guideline case of Mo Kwong Sang and the aggravating features that were present in relation to each offence. 

21.In Count 1, the robbery took place in the early hours of the morning and targeted a sole male employee on duty in commercial premises; the defendants had the commercial premises under surveillance and waited for an opportune time to carry out the robbery; the 2^nd defendant concealed his identity by wearing a cap and facemask; the 2^nd defendant was armed with a paper cutter and a stun gun which he activated to display the electric current of the gun.  As the two defendants were jointly involved in carrying out this robbery where the 2^nd defendant was armed with a stun gun and paper cutter which targeted a sole victim in commercial premises, I adopt a starting point of 6 years’ imprisonment. 

22.In Count 2, the robbery was carried out in the early hours of the morning and targeted a sole female employee on duty in commercial premises; both defendants carried out the robbery and both concealed their identity by each wearing a cap, a facemask and gloves; both were armed with the 2^nd defendant holding a 30cm long knife and the 1^st defendant holding a spanner; both defendants demanded the female employee surrender her wallet and open the store safe; and the female employee had her hands tied up and her mouth covered with adhesive tape.  As the two defendants carried out this robbery with both of them armed and where the sole female victim in commercial premises was subjected to physical harm and tied up, I adopt a starting point of 7 years’ imprisonment. 

23.In Count 3, the robbery took place in the early hours of the morning and targeted two lone female employees in commercial premises; the defendants had the commercial premises under surveillance and waited for an opportune time to carry out the robbery; the 2^nd defendant carried out the robbery concealing his identity by wearing a cap, a facemask and a pair of gloves; and he was armed with a 30cm long knife which he used to threaten one of the female employees.  I adopt a starting point of 6 years and 6 months’ imprisonment. 

24.The three robberies were carried out by the two defendants in concert and with the understanding that each would play a particular role.  They bear equal culpability for each of the robberies.  The only mitigating factor that can be taken into account on their behalf are their pleas of guilty for which they are entitled to a one-third discount, and to some extent their relatively young age but which in the end deserves little if any weight because of the serious nature and multiplicity of the offences. 

25.On Count 1, I reduce the starting point of 6 years’ imprisonment by one third to 4 years’ imprisonment.  On Count 2, I reduce the starting point of 7 years’ imprisonment by one third to 4 years and 8 months’ imprisonment.  On Count 3, I reduce the starting point of 6 years and 6 moths’ imprisonment by one third to 4 years and 4 months’ imprisonment. 

26.The fact that the defendants were involved in three robberies has been taken into account by me when addressing the totality principle.  I therefore order that the sentence on Count 1 to be served concurrently to the sentences on Counts 2 and 3 and that the sentence on Count 3 run partially consecutive to the sentence on Count 2 as to 4 months.  Thus resulting in each defendant serving a sentence of 5 years’ imprisonment. 

Mr Laurence J. Poots, counsel on fiat, for HKSAR

Mr Steve Chui, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 1^st defendant

Ms Diane M. Crebbin, instructed by Herman H.M. Hui & Co., assignedby Director of Legal Aid, for the 2^nd defendant