HKSAR v. Lau Chi Kong (also known as Lau Wai Kong, Chan Chi Choi and Lau Chi Kwong) and Another

DCCC 658/2019

[2020] HKDC 422

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 658 OF 2019

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REASONS FOR SENTENCE

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1.D1 Lau Chi Kong (also known as Lau Wai Kong, Chan Chi Choi and Lau Chi Kwong) and D2 Tam Kan Teng each pleaded guilty before me to a joint charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap 210. Particulars are that they, on 17 April 2019, at Flat A, 6^th Floor, Po Tai Building, Nos 176-180 Nam Cheong Street, Sham Shui Po, Kowloon, in Hong Kong, robbed Chen Shufeng (PW1) of cash of $2,000 Hong Kong currency and two mobile phones.

Admitted facts

2.The facts admitted by D1 and D2 may be summarized as follows.

3.On date of offence, at about 10:30 am, at the subject premises (particulars stated in the charge), PW1, the wife of PW2 ie the owner of the premises, was performing domestic work in the toilet.  Hearing some noise made by the door, she came out to the living room and saw D1 standing there.  He was holding a red cutter and said, “Don’t be scared, I come up for a debt collection.”  He indicated her to squat down.  D1 pointed the cutter at her and asked her to be quiet.

4.PW1 asked him how much he wanted.  D1 replied he wanted $5,200.  PW1 gave him $2,050 with the remark that that’s all she had with her.  D1 kept $2,000 and returned $50 to PW1.

5.D1 asked PW1 if she had any valuable items in her possession, such as watches and jewels.  PW1 said no but took out 2 mobile phones (a Sony and a Samsung both in black) from her bedroom and gave them to D1.

6.D1 shouted to someone standing at the entrance of the premises, “Shall we take away these two mobile phones?”  An answer came through in a male voice, “Okay.  You better give us a sum of $3,200 for redeeming these 2 mobile phones on our next visit.”  D1 then left.

7.PW1 was in great fear during the course of the robbery.  She called PW2 and told him what happened.  PW2 called the police. Police came.

8.On the same day, at 11:46 am, D1 was intercepted by the police in the vicinity.  On D1 were found:-

(a) One 6” long red cutter;

(b) One 6” long yellow cutter;

(c) Cash of $1,600; and

(d) One Sony mobile phone in black.

9.D1 was arrested for robbery.  Under caution, D1 stated:-

(a) He had been to the subject premises for collection of a debt; and

(b) He had only taken a Sony mobile phone in black from PW1.

10.PW1 positively identified the black Sony mobile phone as belonging to her.  PW1 also positively identified D1 as being the robber.

11.CCTV installed in the vicinity of the subject building captured the movement of D1 and D2 into and out of the entrance of the building.

12.Under caution within 2 video-recorded interviews, D1 stated, inter alia, that:-

(a) He and D2 were friends. On the day in question, D2 led him to the subject building;

(b) After they entered the subject building, D2 led him to the subject premises;

(c) He entered the premises while D2 stayed outside;

(d) He found PW1 inside the premises. He went out to report to D2 his discovery. D2 told him to tell PW1 they came to collect a debt;

(e) He brought the red cutter to the premises;

(f) He took out the red cutter and showed it to PW1;

(g) He asked PW1 to sit on a sofa;

(h) Out of the $1,600 seized from him, $1,000 were obtained from PW1 while the rest belonged to him. The Sony mobile phone was obtained from PW1; and

(i) It was he and D2 that were shown in the CCTV footage.

13.One day after the offence, D2 was intercepted by the police in Sham Shui Po.  After making some enquiries, police arrested D2 for robbery.  Under caution, D2 stated that D1 asked him to go to the premises to collect a debt of a few thousand dollars.

14.Back at the police station, D2 under caution within 2 video-recorded interviews, stated, inter alia, that:-

(a) He knew D1. It was D1 who led him to the subject building and the subject premises;

(b) D1 opened the metal gate to enter the premises. He himself had not entered but rather stayed at the anti-smoke door close-by;

(c) At a later stage, he went to the door of the premises which was left ajar. He pushed it open and heard D1 tell PW1 he came to collect debts;

(d) D1’s back was facing him;

(e) He saw PW1 deliver 3-4 pieces of $500 banknotes to D1;

(f) He joined in the conversation between D1 and PW1 and told PW1 to follow D1’s instructions;

(g) He saw PW1 deliver two mobile phones to D1 before leaving the subject building with D1; and

(h) Which of the two persons shown in the CCTV footage capturing the front entrance of the subject building was himself.

15.D2 now admits that he accompanied D1 to rob and to act as a lookout; that despite that he did not know D1 used a cutter at the material time, he knew that during the robbery, PW1 would be put in fear of being subjected to force.

16.D1 and D2 now admit that they together robbed PW1 of the property stated in the charge.

Criminal records

17.D1 has 44 previous convictions 26 of which are related to Theft Ordinance offences including 2 robberies and 9 blackmails. His last conviction for a Theft Ordinance offence (Shoplifting) was in 2009.

18.D2 has 5 previous convictions one of which was for burglary in 2016.

Antecedents

19.D1 is aged 64 (63 at the time of the offence), educated to P6 (changed to self-educated by defence), widowed with no children.  He has been a cleaner with monthly salary of $9,000 (changed by the defence to having a job offer which was not taken up).  He had no fixed place of abode.

20.D2 is aged 49 (48 at the time of the offence), educated to F1, unemployed, and lived with his mother (changed to not residing with mother by the defence).

Mitigation

D1

21.Ms Maria So of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

22.D1 is single and lived alone.  He injured his right arm in his twenties which affected its movement and strength.  He lost his right leg due to a traffic accident in 2003.  He has been using prosthesis enabling him to move freely.  His prosthesis was broken during present remand so he has to rely on wheelchair.  He is now waiting for a new prosthesis.

23.D1 started his own fruit stall business in 2014 which was closed down after early 2019.  He became desperate financially.  He ran into D2 who told him to help collect some debt in return for a promise of reward of half the proceeds.  D1 foolishly complied.

24.On the material day, the two met.  D2 gave him the 2 cutters for use.  D1 was told to collect a debt of $5,200.  D2 led the way up to the premises.  The front door was not locked and was open.  D1 was told to go inside while D2 waited by the entrance.  D1 did so.  Without thinking of the consequences, D1 committed the offence.  D1 was cooperative with the police.  D1 indicated his guilty plea early.  He is deeply remorseful.  He has been in custody for about 1 year 2 months.

25.D1 has turned a new leaf before and did quite well in running his fruit business.  He hopes to re-open his fruit stall after serving the current sentence.  He hopes to earn enough to retire and will not transgress the law again.

26.A mitigation letter written by D1 (with English translation) is submitted contents of which are generally that an attempt to help others to collect a debt has turned into a robbery and he is deeply remorseful and asks for a lenient sentence so that he may turn over a new leaf.

27.Ms So referred to the well-known case of Mo Kwong Sang v R [1981] HKLR 610, in particular 611E-F, which suggests that a term of 6 years’ imprisonment would be appropriate in a case of robbery in private premises involving the display of a knife or other dangerous weapon to the victim.

28.It is submitted that although a cutter was involved, no injury, abuse or violence had been caused or exerted to the victim.  It was not a planned robbery and D1 had no intention to hurt.

29.Ms So asks for a lenient sentence for D1.

D2

30.Ms Fiona Nam of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

31.D2 was born in the Mainland and came to Hong Kong in 2001.  D2’s wife is aged 49 and together with D2 they have a son (22) studying in Chinese University and a daughter (20) studying for nursing in Taiwan.  The family resides in a public housing unit.  Prior to arrest, D2 worked as a casual renovation worker, earning about $13,000 per month.  His wife works as a cleaner, earning about $10,000 per month.

32.Ms Nam referred to Mo Kwong Sang v R, supra, in particular 611E-H which suggests, inter alia, that the suggested sentences should be increased if there are other aggravating factors such as the presence of more than one person in the group of robbers, threats made to victims, ill-treatment of elderly persons and children.

33.Ms Nam accepted that here, the robbery was committed by the defendants jointly, a cutter was held against PW1 and domestic premises were invaded.

34.However, D2 pleads guilty early, indicating genuine remorse; amount involved was small; there was no physical violence and PW1 suffered no injuries; and that D2 is willing to make compensation of an amount of $2,000 from his prisoner’s property despite having received no benefit from the crime.

35.In the present case, PW1 was not able to see D2 as her glasses were taken off.  The only incriminating evidence came from D2’s confession in the VRI that the person depicted in the CCTV footage (which was not clear) was himself.

36.It was not D2’s idea to rob.  He did not give the cutters to D1.  He did not know D1 was in possession of the 2 cutters.

37.Ms Nam asks for leniency for D2.

38.Ms Nam submitted a mitigation letter (in Chinese) written by D2 himself the contents of which are generally that he was remorseful and asked for a lenient sentence.

39.Ms Nam also submitted the case of HKSAR v Ma Ming [2013] 1 HKLRD 813 which, with respect to Ms Nam, I consider to be irrelevant as that case involved more than one charge whereas the case before me involves only one charge.

Sentence

40.I have considered the mitigation submissions made on behalf of D1 and D2.  I understand from counsel that PW1 is not an elderly person.

41.Robbery is a serious offence the maximum penalty of which is life imprisonment.

42.For cases of robbery, imprisonment term appears to be the main-stream if not the only sentencing option.

43.The facts admitted by D2 do not indicate he knew about the presence of the cutters nor he contemplated the use thereof.

44.According to the case of Mo Kwong Sang which both defence counsel cited, the starting point in the case before me at least for D1 (who displayed one cutter to PW1) could be in excess of 6 years because of the aggravating factor of two persons acting in concert.

45.I will adopt the starting point of 6 years 3 months as the starting point as against D1.  In taking this starting point, I have already considered the age and disabilities of D1.

46.As for D2, he only admits to having taken part in an unarmed robbery in a set of domestic premises together with D1.  The facts admitted by him do not indicate he contemplated the use of a cutter during the robbery either.  According to HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378, for an unarmed robbery, the starting point should be lower than the normal sentence for an armed robbery.  In the circumstances, for his taking part in the domestic robbery with D1 without contemplating the use of a cutter, I adopt the starting point of 4 years 9 months.

47.It is unclear from the facts which of the two defendants is the master mind.  Certainly neither of them admits to be so.  In the premises, I am unable to enhance the starting point further on the mastermind of the joint enterprise.

48.D1 has a dreadful criminal record, with similar prior convictions too.  However, to be fair to him, his last robbery conviction was in 2002 and his last theft (shoplifting) was in 2009.  As such, I do not propose to enhance his starting point further.

49.For their pleas of guilty, I will give each of them the customary 1/3 discount.  Apart from that, I am unable to discern from the mitigation any other factors of sufficient weight to warrant any further discount in the case of either defendant.

50.The unrecovered loss to PW1 is cash of $1,000 and a Samsung mobile phone valued at $1,000.

51.D2 is able and willing to compensate PW1 to the tune of $2,000.  While that indication is to be applauded, the remorse thus indicated has been taken into account and subsumed under the 1/3 discount already given to the sentence.

(D2, please stand, and D1 can remain in his wheelchair)

52.D1 will go to prison for 50 months or 4 years and 2 months.

53.D2 will go to prison for 38 months or 3 years and 2 months.  I make a compensation order against D2 to the effect that D2 do make payment of $2,000 to PW1 within 7 days.