HKSAR v. Ho Tung Sing

HCCC 191/2019

[2019] HKCFI 2944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 191 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Ho, you have pleaded guilty to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210. At 1933 hours on 23 May 2018, you and another male ran into Prince Jewellery & Watch on the 3rd floor of Ocean Centre in 5 Canton Road in Tsim Sha Tsui. The shop had a considerable number of staff and customers within it and the two of you were wearing masks, hats and gloves. That would have been terrifying in and of itself. You, Mr Ho, had a screwdriver with you and you used it to pry open a glass cabinet, whilst the other male waved a knife at a member of staff and told them to keep quiet. You stole six pieces of diamond jewellery worth approximately HK$5.5 million from a cabinet and the two of you then left. You were eventually arrested on 28 May, at which time you were found to still have the six pieces of jewellery in your possession.

Ms Tsang on your behalf tells me that you are divorced with an elderly mother and a son and daughter, who are both married. As can be seen from your criminal record, you have had a limited opportunity to hold down a job but you have used your time in prison to acquire qualifications. You, sadly, have a very lengthy criminal record going back to 1974 under a number of aliases. Your first sentence for robbery was in 1977, at the age of just 20. You received a period of imprisonment of 4 years. That was the first sentence which you received despite having several other matters on your record. You could not have been out of prison very long when you received further sentences of imprisonment in 1981 for unrelated matters but in 1982, you committed a similar offence, and you received a further period of imprisonment of 2 years. Matters became far more serious after that as you were sentenced to life imprisonment in 1993 for various offences including two counts of shooting with intent to resist arrest, 15 counts of robbery, attempted robbery, possession of both a firearm and imitation firearm and, lastly and of course most seriously, manslaughter.

You were conditionally released from that life sentence on 9 July 2014 under Part IV of the Long-term Prisoner Sentences Review Ordinance, Cap 524. You were placed under a supervision order until 8 July 2016. However, on 14 June 2016, shortly before that supervision order would have come to an end, your sentence of life imprisonment was commuted to 37 years and 6 days dating from 20 December 1993, and accordingly you were formally released from your sentence of imprisonment on 8 July 2016 but you were then subject to a further supervision order, this time under section 29 of Part V of Cap 524, and that supervision order was effective until 7 July 2018. You were arrested for this offence on 28 May 2018 which was during that period of supervision. However, under section 39 of Cap 524, a supervision order will be revoked only upon sentence and in this case, of course your sentence is today, and it post‑dates the expiration of the supervision order, and therefore no part of the remaining term of supervision between your offending and the expiration of the supervision order will be activated by the Commissioner for Correctional Services. That is slightly complicated but the bottom line is that this court will nevertheless take into account the fact that you committed this offence whilst the subject of a supervision order and it forms part and parcel of your background and your personal circumstances when this court considers the appropriate sentence.

Ms Tsang says you reached a turning point when you were in prison. You studied very hard and you gained qualifications which should have allowed you to obtain honest employment. She tells me you secured a job as an office clerk in an engineering company and later were promoted to project manager at a salary of some HK$12,000 per month. That is to your credit. I am told that you then, however, gave up that position to set up your own company because you believed that you would be engaged in a large building project. Ms Tsang suggests that you put HK$400,000 of your own money into that business. I have to say I am afraid I cannot see how you could have done that given that you had spent the better part of your adult life in prison. What I can only assume is that perhaps you borrowed the money if you did in fact put money into that business, but again I wonder how you would have ever honestly obtained that loan given that you should have had no collateral. In any event, you say you were in debt, started to gamble to make the money back and, having lost even more money, you decided to commit this offence. Unfortunately, Mr Ho, you have not changed your ways at all, have you? Even on your own account, which I am struggling to believe, you are reckless with money and you seem to believe that there is a quick fix to your troubles. Mr Ho, society never ever offers a quick fix. You work hard and you obtain the rewards for working hard. Nothing is given to you on a plate.

I am not impressed by your efforts to suggest that someone else put you up to this offending nor that it was his plan and not yours. You are the one with the extensive record for dishonesty for the very same offences for which you are now being sentenced. It may very well be that you were suffering from stress and you were emotionally unstable but that stress and that instability must be laid at your own door. You had a perfectly good job which you were lucky to have obtained and you gave it up for a scheme which was not set in stone and, I might add, one for which you had insufficient experience to carry out. I am not convinced that you were filled with remorse immediately either. If that had been the case, you would have gone to the police immediately and confessed your crime. Instead, according to the Summary of Facts and through others, the police found you. You say you surrendered and I have the letter from Mr Chang which supports this, but I do note that the story that he recounts to the authorities on your behalf does not fit with the one that you have asked the court to consider through counsel. I have read the letters submitted on your behalf. You are not a thoroughly bad person but you are someone who continues to break the law when life does not go your way and, Mr Ho, the public must be protected from you.

In Mo Kwong Sang [1981] HKLR 610, the Court of Appeal suggested that where, in the course of a robbery, a knife is brandished, the appropriate sentence is one of 5 years. It matters not, Mr Ho, that you were not the one doing the brandishing. I do not accept that you did not know that your accomplice carried a weapon nor that you did not see and hear him threatening members of staff. This was a joint enterprise. You each played your part and you both take responsibility for the acts of your accomplice. I am not going to apportion blame between you. You are equally guilty. You know that. I have no doubt that this robbery was premeditated and well-planned. This was a significant amount of jewellery taken by you from just one display case. For that premeditation and for the fact that this was a high-end robbery seeking to steal some $5 million-odd worth of diamonds, and whilst taking into account the fact that the goods were recovered and that you eventually surrendered, I intend to enhance that starting point by 1 year.

But there is, Mr Ho, another aggravating factor which I have already alluded to and that is your significant record for this very same type of offending. You are, sadly, a career criminal and a lengthy prison sentence was obviously no deterrent whatsoever. You were released with apparently good intentions to mend your ways and with support from others. Subsequent events have shown that you are neither remorseful nor rehabilitated. This court must consider its public duty to protect the citizens of Hong Kong, be they ordinary members of the public or people in business. Luckily, no one was hurt but it would have been terrifying nevertheless, especially as you attempted to disguise yourselves in the way you did. Staff members and ordinary members of the public, no doubt some of them tourists, were subject to your terrifying acts, and because of that and to reflect your previous record, I intend to enhance your sentence by a further year, which makes a total sentence of 7 years.

You will, of course, receive a full one-third discount for your co-operation with the police and your early indication of plea which is to your credit and you will therefore go to prison for 4 years and 8 months.