HKSAR v. Lee Ho Yin

HCCC 75/2018

[2018] HKCFI 1850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 75 OF 2018

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

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COURT:

Defendant, on 26 February this year, you pleaded guilty before a magistrate at the Eastern Magistracy to an offence of robbery. As a result of your plea of guilty you were committed here to the Court of First Instance for sentence.

You admitted that on 22 May 2017 at the 7-Eleven convenience store, the ground floor of 384 Shanghai Street, Yau Ma Tei, Kowloon, you robbed Gao Guoan of cash, HK$5,650.

On that day the robbery occurred at approximately 5 am. You entered the 7-Eleven store wearing sunglasses and a surgical mask and pointed a black pistol at Gao Guoan, who was the 7-Eleven staff, and declared robbery. Gao was the only person in the store at the time. You cocked the pistol and continued to point it at him and ordered him to give you all the money.

He was frightened and unlocked the cashier machine and placed the till drawer on the counter and asked you to take the money. You demanded him to take out the money for you. He complied and you snatched the money and fled. He then made a report to the police.

CCTV of the store captured this robbery. Police investigation and from CCTV tracing identified your residence in Sha Tin. Three days later at about 8.18 pm you were intercepted when you were leaving your residence with a friend of your father. You were arrested for this robbery and, under caution, you admitted you committed the robbery with a fake gun as you had no money.

You were then taken back to your home where a search warrant was executed. Found inside your bedroom was a black pistol and a pair of black sunglasses. The clothing you wore in the robbery was also found.

The black pistol seized from your home was sent for a forensic firearms examination. It was found to be a spring-powered air gun with one magazine designed to discharge 6 mm calibre plastic balls. A functional test showed that the air gun, due to its low velocity, was unable to discharge the plastic balls but fell to the ground shortly after leaving the muzzle of the air gun.

In a video-recorded interview taken by the police shortly after your arrest, you admitted that you had committed the robbery with the toy gun found by the police officers in your home and that the sunglasses found there were also the ones that you wore in the robbery. You said you had used the toy gun to rob but you did not want to hurt anyone and you wanted to get money from the robbery.

Upon reading these facts at first instance it would seem that you had much experience in carrying out robberies as in the video-recorded interview, you admitted to going down the flight of stairs in your home so you would not be captured on CCTV, you prepared yourself for a robbery and that you took the toy gun, the mask, the black sunglasses, you were aware that you were to rob a shop with few people around and after the robbery you took three taxis home so as to avoid being tracked or traced.

You are 23 years of age and you are of clear record. The mitigation advanced by your counsel, Mr Jasper Kwan, has shown me that you are just, as is apparent to me, a naïve and rather thoughtless young man. In short, the reason why you committed this offence was that you were desperate to raise ransom money for your girlfriend whom you honestly believed had been kidnapped in China.

Your father was astute enough to know that perhaps this might have been a hoax or a trick to obtain money from you. He was concerned about your wellbeing. He, in fact, told your relatives (his relatives) not to lend you money for these purposes. Feeling desperate you then turned to commit this very, very, serious offence. One wonders why you would do this.

I had heard in mitigation that you had Aspergers or was diagnosed with Aspergers and also ADHD. I therefore called for two psychiatrist's report and a psychological report. Those reports confirm that, as a youngster, you were diagnosed with ADHD and Aspergers.

However, it appears now from the expert professionals that you are no longer suffering from either ADHD or Aspergers symptoms. More particularly so, that you would not have had those symptoms at the time when you committed this offence.

The psychologist said, despite the diagnoses of ADHD, you did not appear to exhibit significant impulsiveness in this offence. You had considered the consequences of your behaviour and did not act on the spur.

That would clearly appear to be so as you had made careful planning for this robbery. In fact, before you committed the robbery, you were fully aware of the potential consequences and legal implications of such behaviour.

You believed it was more important for you to save your girlfriend and were willing to bear the consequences for that reason. Now, however, you understand and believe that kidnap was a fraud. Perhaps now you understand why your father was trying his best to protect you.

The psychologist's conclusion about you is that you were weak in making social judgments and weak in problem solving skills and that explained why you committed this offence.

I accept that you are not a deep-rooted delinquent, as Mr Kwan has said. Although you may have been a victim of a fraud, that is not a mitigating factor. Yes, you are of clear record and young but in a serious offence such as this, your personal circumstances are not mitigating factors.

From the psychiatrist's report, it is clear that both psychiatrists say that no psychiatric care is warranted.

I have received many letters of support from your family and friends. They have all written very glowing reports about you. You obviously have good support from them, particularly from your aunt from Canada, and your letter, yourself, has made it clear to me that you understand that you have done something wrong and deserve to be punished.

The offence which you have committed is a very serious offence. The case to which I seek guidance from in sentencing you is that of Secretary for Justice v Lee Chun Ho, Jeef [2010] 1 HKLRD 84. That case was a decision by the Court of Appeal of a defendant who had used an imitation firearm to snatch away a victim's knapsack in a robbery.

In that case, the Court of Appeal said that in robberies involving the use of imitation firearms a starting point of 10 years would be appropriate after trial.

As it said, at paragraph 22:

"It must be recognised that robbery with the use of firearms is particularly hideous first, they cause greater fear to the victims and, second, perhaps more importantly, the use of firearms by the robbers will increase the chance of law enforcement officers resorting to their own, thus exposing the public to serious risks of death or personal injury."

At paragraph 36 the Court of Appeal held:

"For an offence of robbery with the use of imitation firearms, personal difficulty and/or financial hardship are not mitigating factors."

The court, in Lee Chun Ho also referred to a case of HKSAR v Mak Chi Ho at paragraph 28 where the Court of Appeal approved a total sentence of 10 years imprisonment on pleas of guilty for one robbery and attempted robbery of convenience stores with the use of imitation firearms.

In HKSAR v Wong Cheung CACC 184, the court there, at paragraph 16 said that:

"…..convenience stores are opened 24 hours and in general, carry large amounts of cash, thus are very tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith's shop or other shops which carry large amounts of cash.”

The court stated clearly heavy deterrent sentences are called for so as to prevent these shops falling prey to robbers easily."

Defendant you had deliberately targeted a convenience store, knowing of course that there would be cash there. You went and sought out one where there were less or no passers-by.

In following the cases that I have mentioned had you been convicted after trial defendant, I would have taken a starting point of 10 years' imprisonment. The strongest and only mitigating factor is your early plea of guilty. In the circumstances you warrant a one-third discount. You are therefore sentenced to 6 years and 8 months' imprisonment.