HKSAR v. Chan Yuen Biu and Another

HCCC 246/2018

[2019] HKCFI 724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 246 OF 2018

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

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COURT:

D1 and D2 are jointly charged with two counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210.

On 6 August 2018 in the Eastern Magistracy they both pleaded guilty to the charges that they faced and they were committed to the Court of First Instance for sentence.

Facts

According to the Summary of Facts which were admitted by both defendants, for Charge 1, the first robbery took place at about 4:24 am on 14 January 2018. A staff, PW1, who was on duty at 7-Eleven convenience store at Ground Floor, No 129-137, Tai Kok Tsui Road, Mongkok, Kowloon, saw D1 wearing a facemask and gloves and carrying a paper bag entering the store. D1 approached PW1 who was at the cashier and took out a chopper. D1 pointed the chopper at PW1 and told PW1 to open the cashier drawer. PW1 complied and D1 took cash of HK$3,670 from the cashier till and left.

For Charge 2, the second robbery took place at about 3:55 am on 22 January 2018. A staff, PW2, was on duty at 7-Eleven convenience store at Ground Floor, No 423 Chatham Road North, Hunghom, Kowloon. PW2 heard a voice from behind. When he turned around he saw D1 wearing a facial mask and gloves pointing a 5 inch cutter at him. D1 declared “Robbery” and demanded money. PW2 opened the cashier drawer and D1 took cash out of HK$3,990.01 from the cashier drawer and fled.

Both matters were reported to the police. The CCTV of a car park near the second convenience store captured a taxi with a registration number KB2419 which was suspected to be involved in the robbery.

After police further investigation both defendants were finally arrested on 6 February 2018.

Under verbal caution, D1 admitted that he robbed the convenience store as he had no money and D2 stated that D1 asked him to drive him to rob and he had asked D1 not to do it. He spent all the money D1 had given him. In a subsequent video record of interview, D1 admitted that he was the robber in both cases and he had fled after the robbery with D2’s taxi. D2 admitted that he agreed to the suggestion by D1 to rob and in both cases he drove D1 to the convenience store and D1 left in his taxi after committing the robbery of both stores. D2 said that he had shared the proceeds of the robbery with D1 in both cases.

Criminal Records and Background of the Defendants

D1 has two previous convictions, one for common assault in 2005 for which he was fined, and one for employing a person not lawfully employable in 2007 for which he was sentenced to 21 days’ imprisonment. At the time of the offence he is aged 47, he is now aged 49. He was born in the mainland and was educated to Secondary 2 there. At the time of arrest, he was unemployed and was living on CSSA of about HK$7,500 per month. He is married and at the time of offence, he was living with his parents, wife, two daughters and son in a public housing estate.

His counsel, Mr Alex Ng, has submitted to me a handwritten letter from D1. In the letter, D1 had expressed his remorse and regret and said that he had expected a lengthy term of imprisonment, but he promised the court to turn over a new leaf and not to reoffend in the future.

I also received another letter from the elder daughter of D1 who is now studying in the university. In her letter, the daughter described D1 as a responsible father, but he suffered business failure due to the economic downturn and after that he committed the present offence due to his mingling with some dubious peers. The daughter told the court that her grandparents, who are now in their 80s, are still very worried about D1 and she hoped that the court can still give her father a chance when considering the sentence.

In mitigation, Mr Ng said that it might be strange that a person who is a mature family man such as D1 would still turn to robbing convenience stores like those reckless youngsters in most of the cases. He described the present case as rather unusual. He said the defendant originally had set up his own business and opened his own shop selling cleaning products, but it was due to the economic crisis in 2009 to 2010 that caused his business to close down finally. Afterwards he had at one time turned to electrical business, but that also proved to be a failure, and thereafter D1, who was the breadwinner of the family, had no choice but to live on the CSSA and because of the luxury of time he started to mingle with some dubious peers and that is why he ended up in committing the present offence like this.

Mr Ng emphasised the fact that in this case although the shop is a convenience store the Court of Appeal had already clarified that it should not be considered as an invasion of a private premises and Mr Ng submitted that albeit the two victims’ stores are convenience stores which open for 24 hours a day, the degree of aggravation, should not be as serious as the other cases because nowadays, many transactions are conducted by electronic payments and therefore the previous considerations that this kind of convenience store who used to carry a large amount of cash is no longer a valid consideration.

All in all, Mr Ng submitted that based on his submission of authorities that perhaps an overall starting point between a range of 6 to 7 years for the two offences would be appropriate in the case of D1.

D2 is now aged 66. He has nine previous convictions in the past with two similar records of robbery, one back in 1975 for which he was sentenced to 18 months’ imprisonment and later in 2005 when he was sentenced to 32 months’ imprisonment. His last conviction, however, was for trafficking in dangerous drugs in 2014, for which he was sentenced to 32 months’ imprisonment and he was released in July 2016.

D2 was born in Hong Kong and graduated from primary school. At the time of arrest, he was, like D1, living on the CSSA, (public assistance), and he was a part-time taxi driver earning a salary of about HK$4,000 per month. D2 was married and has two daughters, aged 43 and 34, but live separately. The wife lives in the mainland and therefore he lives alone in a public housing estate.

Mr Michael Leung, counsel for D2, told the court that his client was a drug addict and he came to know D1 four to five years ago in a methadone clinic. According to his instructions, D1 would from time to time come to D2’s house to take drugs together.

Concerning the commission of the present two offences, it is his instructions that it was a suggestion by D1 to rob and although D2 had expressed his reservation and worries about committing the robberies, D1 had assured him that he would be fine and subsequently he complied and went along with the suggestions and acted as a getaway driver by using his taxi. He had also split the share of the proceeds of the robbery with the 1st defendant, D1.

Mr Leung adopted largely the submission by Mr Ng on behalf of D1 in relation to the sentencing authorities and he urged the court to consider an overall starting point similarly in a range of 6 to 7 years for both charges.

Sentencing Considerations

In this case, the two defendants had known each other for about four to five years prior to the robberies. They agreed between them that they would commit robbery as they were short of money. They then embarked on these two robberies. The robberies were clearly pre-planned, taking place in the early hours of the morning and targeting convenience stores because that was the only place that would be open in the early hours of the morning alongside with places like petrol stations, and there would be some cash, and mostly 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 both occasions D1 carried out the actual robbery while D2 acted as perhaps a lookout and also the driver of the getaway vehicle. They split the proceeds of each robbery between them more or less equally. In my mind, although they played different roles in each robbery their culpabilities were just the same.

In sentencing the defendants, I have borne in mind the facts of the case, the nature of each robbery in question, the background of the defendants and the matters urged on the defendants’ behalf by their counsel.

Each of the robberies involved the use of weapons and the display of a chopper or a cutter to the shop keeper concerned. In all fairness to the defendants, other than the display of the weapons, no actual violence was used on the victims.

Both counsels in their mitigation drew my attention to the sentencing guidelines for armed robbery as set down by the Court of Appeal in R v Mo Kwong Sang [1981] HKLR 610. The appropriate sentence in an ordinary case of armed robbery where the accused carried a knife which he displays to his victims should be 5 years’ imprisonment. Besides, the multiplicity of offences of a similar kind is properly considered as an aggravating factor and the sentences should be increased from the sentencing guideline.

It was submitted that although the Court of Appeal said in Mo Kwong Sang that if such a robbery also involved an invasion of private premises a sentence of 6 years would be appropriate, a convenience store is not a private premises and the robbery of such an open shop does not involve private premises. I have been referred to paragraph 50 to 53 of the judgment in HKSAR v Lam Hoi (unreported), CACC 105/2016. However, the Court of Appeal in HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 699 held that cases such as petrol stations and convenience stores that were opened around the clock were susceptible to robbery and had to be protected. A deterrent sentence was warranted for those who robbed these places. The Court of Appeal in HKSAR v Wong Cheung [2011] 5 HKLRD 171 reconfirmed that the observation made in Kwok Cheuk Man in paragraph 16 of the judgment:

“The Court has once emphasised in cases of similar nature that convenience stores are open 24 hours and, in general, carry a large amount of cash, thus are very tempting to robbers. In such circumstances the offence of robbing convenience stores is akin to the offence of robbing a bank, a goldsmith’s shop or other shops which carry large amounts of cash. Heavy deterrent sentences are called for as to prevent these shops from falling prey to robbers easily.”

For these reasons, as the present two counts of robbery involved convenience stores, in each case by itself it would clearly be an aggravating factor. I do not consider, however, that the widespread use of electronic payments nowadays in the convenience stores would somehow reduce the seriousness of these aggravating factors. It remains the fact that these convenience stores, along with petrol stations, are among the few businesses that would be open around the clock and they were susceptible to robbery and for this reason alone, they should be protected and a deterrent sentence is already called for.

Taking into account of all the circumstances of this case and the fact that the commission of both counts were aggravated by the fact that they were robberies of convenience stores. In my judgment, the aggravating factors call for an upward adjustment of 1 year and that brings the starting point for each charge, that is Charge 1 and Charge 2 to 6 years’ imprisonment.

Although D2 has similar convictions in the past, those were more than 14 years ago at least, and taking into account that he is now already aged 66, I decide that in this case I would not enhance his sentence this time on account of his similar record, but D2 should be aware that if he resorted to commit a similar offence in the future I am sure the court will not be as lenient as this time.

Both defendants should be given a one-third reduction in sentence because of their timely guilty pleas which, in my judgment, is the only effective mitigation.

The sentence for each defendant on each charge is therefore 4 years’ imprisonment. That, however, is not the end of the matter. I bear in mind the totality principle. The two robberies were committed by both defendants within eight days against two different convenience stores in two different districts in Kowloon. The Court of Appeal said in Lam Hoi at paragraph 60:

“As each offence represents additional culpability of the Appellant the sentences could, in principle, be made consecutive to the overriding application of the totality principle. Clearly this principle would prevent orders being made for the sentences to run wholly consecutively.”

So clearly a partly consecutive sentence should be considered in both defendants’ case. In one of the cases cited in Lam Hoi, HKSAR v Chan Pak Hung (unreported) CACC 404/2006 , the 18 year old defendant pleaded guilty to two armed robberies of convenience stores. On each occasion he acted in concert. For the first charge, he pointed a chopper at the victim’s waist and on the second charge, he displayed a food knife. The facts are very similar to the present case. The two weapons displayed are very similar too. In view of the defendant’s clear record and the young age, his appeal was allowed and a global starting point of 8 years and 3 months was substituted.

In the present case, however, both defendants are of full age and also with previous conviction records, both robberies involved display of chopper or cutter, more than one robber was involved in each of the robberies, and the offence took place in the early hours of the morning targeting at convenience stores and the shop keepers who were most vulnerable, each defendant had involved in two separate offences.

In my judgment, a notional starting point of 8½ years’ imprisonment should be imposed in order to reflect the overall culpability of the two robbery charges. After one-third discount, a total sentence of 68 months’ imprisonment is therefore appropriate.

As a result, in the case of each defendant, I order 20 months of the sentence for Charge 2 shall run consecutively to the 4 year sentence for Charge 1, making a total of 68 months’ imprisonment, or 5 years and 8 months’ imprisonment.

Defendants you have pleaded guilty to two counts of robbery. Based on the reasons that I have given, each of you have to serve the total term of 5 years and 8 months’ imprisonment.