COURT: The defendant is charged with two counts of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.
The defendant pleaded guilty to the two charges before a magistrate and was committed to the Court Of First Instance for sentence. This morning, he confirmed his plea before me and accepted the Summary of Facts read to him. The case relates to two separate incidents of robbery.
The first incident (ie Count 1) took place at 1930 hours on 1 December 2006 at Tai Po Tsai Village Open Space Carpark, Lot DD 227, Clear Water Bay Road, Tseung Kwan O. He together with Cheung Tsang-ho robbed a male victim of cash $1,000 and two mobile phones, valued at $1,000 from his rucksack and waist bag. The victim could not see the faces of the two males due to the darkness of the environment. One of the males pressed a hard object against the victim’s back whilst the other male pointed a knife (about 30cm in its length) at his neck.
The victim was then brought to an abandoned freight container and the two males tied his arms and legs up with adhesive tapes and used adhesive tape to cover his mouth. Three pieces of adhesive tapes used to tie up the victim were seized at the scene. Five fingerprint marks were lifted from the sticky side of the adhesive tapes.
Upon comparison, the accused’s fingerprints confirmed to match three of the fingerprint marks found on the seized adhesive tapes.
Having been arrested and cautioned, the accused admitted to have committed the robbery and he had used another identity as “Li Hung-bing” in 2006.
In the subsequent video-recorded interview, the accused stated he came to know a friend called “Ah Wah” in Shenzhen more than 10 years ago. He robbed an unknown male with Ah Wah on the hillside but he forgot the exact location. The accused stated that Ah Wah used a knife to point at the victim, while he used adhesive tapes to tie the victim’s hand and feet. Ah Wah stole some cash and mobile phones from the victim. Afterwards, he and Ah Wah went to have a meal at a small shop nearby and he had not been in contact with Ah Wah after the incident. He did not receive or keep any of the stolen properties. When the accused was once being arrested more than 10 years ago in Hong Kong, at that time, he claimed to the police that his name was “Li Hung-bing” instead of his real name.
Count 2
The second case (ie Count 2) took place at 1933 hours on 23 May 2018, the accused and another male Ho Tung-sing went into Prince Jewellery & Watch on the 3rd Floor, Ocean Centre, No. 5 Canton Road in Tsim Sha Tsui. The shop had about 20 staff and customers within it and two of them were wearing masks, hats and gloves. That by itself would have been a terrifying experience to the persons present. Ho had a screwdriver and he prised open a glass cabinet, whilst the accused had a knife put up at a member of staff and told them to keep quiet. Six pieces of diamond jewellery worth approximately HK$5.5 million were stolen from a cabinet. Ho and the accused then fled. Ho was arrested on 28 May 2018 and the six stolen diamond pieces were recovered from his possession.
The transaction record of the Octopus card revealed that someone had used it to leave Lowu MTR Station on 24 May 2018. Upon CCTV viewing at Lowu MTR Station and Lowu Control Point, it was confirmed that person had taken MTR train to Lowu using the Octopus card and departed Hong Kong via Lowu Control Point. Further check on the Immigration Counter unearthed the identity of the accused. The record revealed that the accused arrived Hong Kong via Lowu at 1722 hours on 21 May 2018 and departed Hong Kong via Lowu at 0911 hours on 24 May 2018. The accused has been put onto “Wanted” and “Watch” lists since 1 June 2018.
On 26 November 2019, the accused was arrested upon coming to Hong Kong. The accused remained silent under caution. The Octopus card was found in his possession.
In the first video-recorded interview, the accused stated under caution that he identified himself from the CCTV footages including those captured in Wong Tai Sin before he headed to Tsim Sha Tsui to commit the offence; and when he returned to the Mainland via Lowu Control Point. He bought and used the Octopus card seized from him for taking transportation in Hong Kong. No one else used it.
In the second video-recorded interview, the video-recorded interview of Ho was played to the accused. Under caution, the accused identified Ho in the video footage. He acquainted Ho through a friend in the Mainland called “Shum”. Ho later agreed to assist in committing the robbery with rewards. He met Ho in Wong Tai Sin, one day before committing the robbery. The accused was informed of his role which was to prevent others getting close to them at the scene. The accused then picked a knife from a park.
The accused also stated on the day of the robbery, the accused, Shum and Ho met for lunch. The accused and Ho then took a bus to Tsim Sha Tsui and went to Harbour City together. Before entering the jewellery shop, the accused put on the clothing, masks and caps that were kept in the bag he carried. During the robbery, the accused held a knife and threatened others not to get close to Ho and himself.
After the robbery, the accused stated that Ho told him that he would sell the loot and they fled separately to avoid being caught by the police. He left Hong Kong the next day after the robbery. He used the Octopus card to Lowu Station and returned to the Mainland alone. The accused did not see Ho again and failed to receive any rewards. Shum informed him that Ho had failed to sell the loot.
Mitigation
Ms Vivien Chan, counsel for the defendant, submitted a written skeleton for mitigation. The defendant is now 52 years of age. He was born in the Mainland and received primary education in Guangxi, China. He is divorced with two sons, aged 23 and 9. His second wife, ex-wife at Guangxi has the custody of his younger son. Before the present case, he worked at Shenzhen earning about RMB2,000 per month.
As can be seen from the accused’s criminal records, he has records in relation to a burglary offence in 1999 and immigration offences in 1999, 2001, 2002 under a number of aliases. His first sentence for burglary was in 1999. He received a period of imprisonment for 2 years. He received further sentences of imprisonment in 2001 and 2002 for unrelated matters. I should say that the previous criminal record of the accused does not aggravate the sentence.
Ms Chan for the defendant stressed that the defendant was not the instigator of the robbery. Ms Chan says that he committed the offences due to foolishness and out of greed. She submits that the defendant easily willingly took part in others’ suggestions and follow their instructions. In both cases, he did not keep any of the stolen properties. He simply followed instructions and waited for his rewards. That he had no prior similar record of robbery. He is now deeply remorseful. He made frank admission to the police and pleaded guilty at the earliest opportunity.
As for Count 1, Ms Chan in mitigating on behalf of the defendant, said that he and his family was impoverished in the 1990s. He came to Hong Kong illegally with the accomplice with an intent to try their luck and to find work. It was submitted that the defendant could not make ends meet in Guangxi and he became indebted to loan sharks due to gambling. He managed to find some construction work but the earnings were not sufficient to raise his son. He came to know Shum who suggested to him that he could make a lot of money by unlawful means and introduced him to Ho, the accomplice of Count 2. He committed the present offence to make quick money to repay the debt.
Sentencing Consideration
The leading sentencing guideline case for armed robbery is Mo Kwong Sang v R [1981] HKLR 610. In that case, it was suggested that the appropriate sentence in cases of armed robbery where the defendant carried a knife or other dangerous weapon which he displayed to his victim should be one of 5 years’ imprisonment; that where the robbery involved an invasion of private premises, a sentence of 6 years was appropriate; and that if physical violence, including tying up the victim, was used, a sentence of 7 years should be considered.
It was also suggested that the sentences should be increased if there were other aggravating factors, such as the presence of more than one person in a group of robbers or threats made to victims.
When addressing the applicable tariff for armed robbery cases in Mo Kwong Sang, the Court of Appeal stated that the tariff was set for robbery where the culprit is armed with a knife or other dangerous weapon but not a firearm for which severer sentences were normally imposed. The Court of Appeal noted that the background cases that they used as a reference in fixing the tariff involved several culprits armed with knives with which they threatened their victims before robbing them and, in most cases, tying them up. They said that armed robbery of this nature would cause terror to the victims as well as a loss of their possessions.
It is relevant that whilst a robber may not be armed with a weapon he may nevertheless use his physical strength or some other method to terrorise and harm a victim. See HKSAR v Zhang Wei [2014] 6 HKC 599 where instilling terror in a victim by whatever method is used is an aggravating factor. In HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378, it has been held that the fact that a robbery involved more than one culprit was an aggravating factor because the threat or pressure exerted by a number of robbers on the victim were obviously more serious than those exerted by a sole robber. In my view, where a robber displays a preparedness to use physical violence, this too is an aggravating factor that may warrant an enhancement of the sentence.
Count 1
I note that in the case of Count 1, the victim was brought to an abandoned freight container. The defendant together with his accomplice tied his arms and legs up and used adhesive tape to cover his mouth. The victim in those circumstances would be subjected to terror throughout the period. This was a grievous feature in this case and was a serious element of aggravation.
It matters not that the accused was not the one doing the brandishing of knife in Count 1. This was a joint enterprise. He and Ah Wah each played their part and they both take responsibility for the acts of the accomplice.
In light of the above, I will adopt a starting point of 6 years on Count 1.
Count 2
There are a number of aggravating features in the case of Count 2.
First, based on his own admissions, this robbery was premeditated and well-planned. The accused came to Hong Kong on 21 May 2018 and left the next day after committing the robbery with Ho on 23 May 2018. According to his second recorded interview, he met Ho in Wong Tai Sin one day before committing the robbery.
It is clear that the defendant came to Hong Kong prepared to carry out the robbery in the circumstances that have taken place in this case. In HKSAR v Obiagwu Oluchukwu Christian [2011] 1 HKC 453, the Court of Appeal held that the fact that a robbery was committed by a visitor to Hong Kong could be regarded as an aggravating feature.
Second, another aggravating factor is that the accused admitted he held a knife and threatened others not to get close to Ho and himself.
The third aggravating factor is that this is a robbery targeting a jewellery shop. The courts have long determined that the robbery of jewellery and goldsmith shops are a particular scourge which must be met with condign punishment and severe deterrent sentences. This was a high-end robbery seeking to steal some 5.5 million worth of diamonds.
To reiterate the aggravating factors that feature in the case of Count 2, they are:
(1) The robbery was well planned and premeditated;
(2) The defendant, a resident of Mainland China, entered Hong Kong for the specific purpose of carrying out the robbery;
(3) The defendant had a knife and displayed a preparedness to use physical violence;
(4) The robbery was targeted at a jewellery shop;
(5) The robbery involved more than one culprit.
The combined effect of these aggravating factors rendered this case of robbery a very serious one.
In light of the foregoing, I will adopt a starting point of 7 years on Count 2.
Conclusion
Bearing in mind all the facts and circumstances and the criminality involved as well as taking into account the totality principle, I will sentence the defendant as follows:
As to Count 1, I impose a starting point of 6 years’ imprisonment which I reduce by one-third for the defendant’s plea of guilty to 4 years’ imprisonment.
As to Count 2, I impose a starting point of 7 years’ imprisonment, and having taken into account the submissions made by counsel for the defendant, reduced by one-third for the defendant’s plea of guilty to 4 years and 8 months’ imprisonment.
These robberies were committed on different dates and merit consecutive sentences, subject to matters of totality.
Having regard to totality, I order that 3 years of the sentence of Count 2 to run consecutively to the sentence imposed on Count 1, and 20 months be served concurrently with the sentence of Count 1. The defendant is to serve a total sentence of 7 years for the two charges.
Defendant, please stand up. For the matters I have mentioned, I sentence you to an imprisonment term of 7 years.