On 2 July 2019, both defendants pleaded guilty in the Eastern Magistrates’ Courts to one count of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210. On 14 December 2020, both confirmed their pleas before me and accepted the Summary of Facts.
Briefly, at around 11.30 on 9 February 2018, while five staff members of Wall Street Exchange Limited were escorting two suitcases containing cash of Japanese Yen 454,530,000 to the bank and when they were walking along Bristol Avenue, around eight people wearing hoods and/or caps and/or face masks went towards them. Some of the gang of eight were holding knives, each of around one-foot long. The members of the money-escorting crew were then attacked and received punches and kicks, with Danielle sustaining bruising and tenderness on his right forehead; Hassan sustaining tenderness near his right eye; and Karmjit sustaining abrasion on his left elbow and right knee.
In the course of the robbery, Dilawar had tried to get hold of the purple suitcase originally carried by Hassan but as one of the robbers rushed towards him with a knife of around 20 centimetres in length, he was terrified and stepped away. Further, Kitta was hit at his left eye corner, he then squatted down but he was still kicked once on his waist.
Moments before the robbery, Mr Yeung, a civilian present there, on seeing that a number of males wearing hoods and/or face masks get out of a 7-seater van with one or two having a metallic silver object and then later returning with two suitcases from an alley which they entered, he made a report to the police giving the licence plate number of the van and its make and model.
In response to the report made, the police set up a roadblock at the New Territories bound flyover near Mei Foo Sun Chuen. Close to 12.30 that day, the police officers at the roadblock spotted the van reported by Mr Yeung. D2 and an unknown person jumped out from the passenger seats of the van and ran. The unknown person successfully made good his escape.
Meanwhile, three customs officers in a government vehicle on the flyover noticed D2 and the unknown man jumping out from the van and helped intercepting D2 who then jumped off the flyover. Shortly afterwards, two of the customs officers saw D2 near an MTR exit in Mei Foo. They followed D2 who was then crippled and was boarding a bus. The customs officers stopped the bus where D2 was arrested.
Turning back to the flyover, D1 was found sitting in the front passenger seat next to another man, the driver. Both were then arrested. Later, it was found out that the licence plates attached to the van were false. On examination, the Japanese Yen was found on the van and there were also the purple suitcase and clothes and face masks.
Both defendants’ DNA was found on the items seized from the van, including clothing items and face masks. In addition, the CCTV cameras installed captured D1 following the money‑escorting team along Bristol Avenue and robbing them together with others and that after the robbery, D1 was captured with others gathering at a back alley near Austin Road with the two suitcases.
When D2’s mobile phone was examined, it was found that he had sent a photograph at around noontime on 9 February 2018 to an unknown person capturing a street sign in Mei Foo and that person then texted back “OK”. There were also a number of calls in that morning between D2 and that unknown person.
D1’s Mitigation
D1 was born in Hong Kong to a Nepalese family. He was educated in both Hong Kong and the UK. Afterwards, D1 had worked as a general worker in a construction site. At the time of the offence, he was 21 and had no prior criminal conviction.
D1 claims that he had nothing to do with targeting the victims and asserts that he was not the organiser of the robbery. But Mr Sherry accepts that D1’s greatest mitigation is his early guilty plea.
In addition, Mr Sherry suggests that since no one sustained any knife injuries and that the injuries were relatively minor, thereby distinguishing this case with a head-bashing robbery wherein a starting point of not less than 8 years was considered appropriate in HKSAR v Ma Ping Wah [2000] 2 HKC 566, a starting point of no more than 7 years should be adopted in this case.
D2’s Mitigation
D2 is now aged 41. He was born in Pakistan and was educated there up to secondary level. D2 is a Form 8 holder and he has been in Hong Kong since 2007, awaiting the processing of his claim for asylum status. D2 has two immigration‑related criminal convictions in 2008 about his unlawful remaining in Hong Kong and his using an identity card belonging to another person. In respect of these two offences, he was sentenced to a total term of 15 months’ imprisonment.
In mitigation, Mr Pannu suggests that D2 was merely recruited by some local Pakistani gang members to be a lookout for the robbery and to escort the loot and that he was not aware of its precise nature. Further, it is said that D2 was only promised a reward of HK$15,000 and that he accepted the offer because his brother was seriously ill back in Pakistan.
In short, Mr Pannu urges upon this Court that D2 is a vulnerable individual seeking asylum whose status was exploited by the masterminds who were not caught.
Sentencing Considerations
The tariff for this type of robbery was laid down in Mo Kwong Sang v R [1981] HKLR 610.
In this case, some of the robbers were holding knives in the course of the robbery. That, in itself, would call for a starting point of 5 years.
The persons targeted by the defendants’ gang was a group of five staff members of a cash delivery escorting team working for an exchange company. Given the swiftness in which the robbery was carried out, the use of false licence plates, the recruitment of Form 8 holders like D2, and the fact that the robbers were able to rob the escorting team when they were making their way to the bank, etc, I have no doubt that it was a well-planned robbery. For this aggravating factor alone, I am going to enhance the starting point by 1 year, making it one of 6 years.
Further, it is clear that the gang was targeting the cash‑escorting team of a money exchanger and it needs no elaboration that this is an aggravating factor and robbers who eye on banks and money exchanges or similar groups or companies because of the huge amounts of cash involved in these companies’ businesses would need to be dealt with severely in order to protect these vulnerable groups so that they could safely carry out their business. The cash involved in this case was Japanese Yen 454,530,000, which was tens of millions of Hong Kong dollars. Although the money was recovered, it did not detract from the fact that this robbery was a serious one involving a huge sum of money. For what I have mentioned just now, I would further enhance the starting point by 1 year, taking it to 7 years.
Next, the robbery was not a one-man job but it was carried out by a group of eight. No doubt, the gang knew full well before the robbery that there would be a number of persons escorting the cash. However, instead of being deterred by this fact, they went ahead with the robbery but in order to make sure that they had a number sufficient to overpower the escorting team, eight persons or around that number, were engaged. The fact that the robbery was the concerted effort of such a number of people is another aggravating factor which would call for an enhancement of 1 further year, making it a starting point of 8 years.
Finally, the fact that a knife was used to frighten off a member of the escorting team when he tried to get hold of the suitcase and that kicking was administered on another team member when he was already on the floor illustrate the extent of the violence used although I accept that the knives were not used in causing any of the injuries sustained by the escorting team members. Nevertheless, if there were such injuries or if it were a head-bashing case, there would no doubt be a further enhancement.
I also cannot lose sight of the danger which might be caused to the passers-by for this robbery took place at around noon time in Tsim Sha Tsui, a very busy place with a lot of people around. Therefore, for these matters, I am going to further enhance the sentence by 1 year, making it a starting point of 9 years.
In other words, the starting point which I consider appropriate after taking into account all these aggravating factors is one of 9 years.
However, for D2, he is a Form 8 holder and in HKSAR v Singh Gursevak [2019] 2 HKLRD 274, in which the sentencing judge enhanced the starting point for the robbery of the owner of an exchange shop by 2 years, the Court of Appeal said at paragraphs 47 to 49 that:
“That robbery is a very serious offence is undisputable. That this particular manifestation of it was particularly serious is also indisputable. So, what then of the impact of it on Hong Kong and its residents?
In the present case, the impact on the community is considerable. It goes well beyond the victim and his family and into the wider Hong Kong community. It affects people’s sense of security, especially those who are engaged in businesses similar to the victim’s. It affects the community’s attitudes to people of different ethnicities as they live side by side with them in a multicultural community. It creates anxiety and distrust within a community.
The reputational damage to a city which promotes itself as a tourist destination is obvious. But Hong Kong is more than just a city to visit. It is a home to many in the international business community and it seeks to attract more international businesses to set up here. In order to do that it portrays itself as a safe city for people in which to do business and go about their daily lives. Nothing undermines that perception more than violent street crime.”
At the end, the Court of Appeal did not consider that the 2‑year enhancement was manifestly excessive.
In the case of D2, I do not accept that he was preyed on because of his asylum status. It was out of his own free will that he took part in the robbery. According to the Summary of Facts, he also had phone contacts with others, which must have been in relation to this robbery. For his Form 8 status and for the serious robbery in this case which he took part, I consider that an enhancement of 1 year for his status is called for.
Further, there is no dispute that D2 committed the present robbery when he was on bail in relation to another robbery case. For that other robbery, it was said to have been carried out by a group of three involving about RMB 100,000 in October 2017, whereas D2 was arrested in November 2017 and he was then released on bail.
Mr Pannu accepts that this is an aggravating factor which the court could take into account. However, Mr Pannu stresses that for that other case, D2 had been released on bail for over three years now. So it would mean that not much was there against D2 in that other case. Whatever the position in relation to that other alleged offence, my view is that it is an aggravating factor which is not of insignificance in the case of D2 committing this present robbery whilst on bail in relation to another alleged robbery, because it shows that D2 was not deterred from committing this robbery while on bail in relation to that other case. In my view, for this aggravating factor, a further enhancement of 3 months is warranted.
The Sentence Imposed
I have carefully considered the mitigation of both defendants. Clearly, the previous clear record of D1 and the said plight of D2 are not mitigating factors carrying any weight in this serious case of robbery. The fact that no serious injuries were sustained by the escorting team members or that the cash was all recovered, are not mitigating factors warranting any reduction. Further, as pointed out by Woo VP in HKSAR v Lai Kam Tong and Another, CACC 338/2004, 3 February 2005, at paragraph 31:
“This court has regularly declined to apportion blame and adjust sentences to any marked degree when defendants are parties to a joint enterprise.”