HKSAR v. Li Man Lap, Otis and Another

DCCC 305 & 656/2020 (Consolidated)

[2021] HKDC 248

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 305 & 656 OF 2020

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REASONS FOR SENTENCE

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Procedural History

D1 and D2 are jointly charged with an offence of "Robbery". This case was originally fixed for trial on 27 October 2020 (with 4 days reserved). D2 pleaded guilty to the charge before me and indicated his willingness to assist the prosecution. Time was taken to obtain his non-prejudicial statement. In view of the new development, on 28 October 2020, I refixed D1's trial to 4 January 2021 (with 6 days reserved).

2.D1 pleaded not guilty to the charge.  I found him not guilty of "Robbery" but guilty of "Theft" after trial.

Summary of Facts

3.I have summarized the evidence against D1 in my Reasons for Verdict.  For the purpose of sentencing D2, I set out the following facts, which were admitted by him.

4.The robbery took place at a storage site situated near the junction between Scenic Road and Chek Lap Kok South Road on Lantau Island ("the Site").  It was occupied by Leighton Contractors (Asia) Limited ("Leighton") for storage of materials and equipment to be used for works carried out at the airport.

5.Mr. Hikmat (PW1) was a night security guard posted at the Site.  Around 3:30 a.m. on 5 October 2019, he was on duty alone in the container office.  Suddenly, 2 males came into the office.  One of them, who was wearing a black face mask, sprayed something in PW1's eyes, causing him to lose his vision temporarily.  They assaulted PW1 and tied up his hands and feet with plastic straps.  PW1 felt dizzy and was unable to see.  He heard the sound of opening and closing of the office door; vehicles and machinery; and people talking.

6.About 40 minutes later, PW1 managed to free himself.  He found $7,000 cash missing from his bag.  The bicycle lock which was used for locking the front gate of the Site had been cut and placed inside the office.  PW1 was sent to the hospital for treatment.  He was found to have tenderness over his bilateral lower chest wall and upper abdomen, and loosening of his right upper molar.

7.Mr. Chung (PW3) was a self-employed crane lorry driver.  On 4 October 2019, he received an order from a mobile app.  The order came from someone named Li On-fai ("Li") with the phone number of a pre-paid SIM card, the user particulars of which were unknown.  He was asked to be at Tung Chung at 5:00 a.m. on 5 October 2019 and then deliver goods to Yuen Long. PW3 negotiated the terms and price of the job with Li and received a deposit paid into his bank account.

8.Upon arriving at Tung Chung, PW3 called Li and was told that Li's colleague would get in touch with him.  Shortly afterwards, someone called PW3 and told him where to go to pick up the caller.  PW3 drove to the location specified by the caller and picked up D1 there.  D1, who was wearing a reflective vest, boarded PW3's truck and directed PW3 to the Site.  The main gate of the Site was opened by a fat male, who also told PW3 to lift 2 drums of cable onto his truck.  That fat man asked PW3 to deliver the cables to Kam Tin and instructed D1 to go with PW3.

9.After loading 2 drums of cable onto the truck, PW3 drove to Fuk Hi Street in Yuen Long with D1 riding along.  They waited there for about 30 minutes.  Subsequently, 2 private cars arrived.  One was a dark coloured car (PE 8426), which pulled up beside PW3's truck.  PW3 was told to follow PE 8426 to a recycle yard nearby. The other car (KX 9016) had 1 male and 1 female on board; they opened the gate of the recycle yard.  The driver of PE 8426 paid PW3 cash for his service.  PW3 asked D1 to leave his particulars for record and D1 allowed PW3 to take a photo of his ID card.  PW3 left the recycle yard after unloading the cables.

10.Mr. Ho (PW2) is a foreman employed by Leighton.  He was responsible for keeping stock stored at the Site.  On 5 October 2019, PW2 arrived at the Site shortly after being asked by the Police.  He found 2 drums of "Ducab" brand cable missing; their total value was $800,000.  He later identified the 2 drums of "Ducab" brand cable delivered to the recycle yard by PW3 as properties stolen from the Site.

11.Madam Tseung (PW4) was an employee of the recycle yard in question ("the Yard").  She received a phone call on 4 October 2019 offering to sell cables to the Yard.  She also received photos of the cables from the caller. She informed the caller that she had to see the goods in person before she could give him a quotation on the price.  They agreed to meet at the Yard around 6:30 a.m. on the following day.

12.PW4 and her boss (Mr. Yu) arrived at the Yard as scheduled in a private car (KX 9016).  The truck driver (i.e. PW3) was already waiting outside the Yard when they arrived. PW4 said there was another private car waiting as well.  She opened the gate of the Yard and told PW3 where to unload the goods.  PW4 saw 2 males (one taller and fatter; the other shorter and smaller) standing together whilst they watched PW3 unloading the goods.  Afterwards, those 2 males followed PW4's boss to obtain payment.  Mr. Yu paid them $10,000 first since insufficient cash.

13.About 3:00 p.m. on the same day, PW4 received a phone call about the balance of the payment for the 2 drums of cable.  She told the caller to come collect it.  D1 went to the Yard to collect $70,000 odd from PW4.  PW4 recorded the details of his ID card and D1 signed on a receipt.  PW4 confirmed that D1 had remained outside the office when the fatter male went inside to collect payment from her boss in that morning.

14.D2 was arrested at his home in Sai Kung on 27 July 2020.  Under caution, he claimed that he acted as a lookout for a reward of $1,000, which he did not receive. 

15.In his video recorded interview, D2 claimed that he met D1 at a social gathering held at a bar in Tsim Sha Tsui around September 2019.  On 4 October 2019, D2 received a call from D1 offering him a job.  They agreed to meet at Tsuen Wan West MTR Station at midnight the same evening.  There, D2 met up with D1 and an unknown person (Male A).  They boarded a private car driven by Male A.  D2 fell asleep in the car.  When he woke up, they were already at the Site.  D2 asked D1 what they were doing there.  D1 told him that they were going to rob some cables from the Site.

16.D2 said a fat man (Male B) came out of the Site to greet them.  D1 entered the Site together with Males A and B.  D2 claimed that he only acted as a lookout at the entrance.  After a while, D1 phoned D2 asking him to go inside the container office to get some documents for the crane lorry driver.  Upon entering the office, D2 saw a South Asian male having been tied up.  Males A and B were also present.  Male B handed a document to D2 and immediately pushed him out.  D2 gave the document to the truck driver and then went out of the Site to continue his lookout duty.  About an hour later, D2 saw D1 boarding the crane lorry, which was loaded with 2 drums of cable.  After the crane lorry left the Site, Males A and B told D2 that the job had been completed.  D2 left the Site with them in their private car.

17.D2's left thumb print and left palm print were found respectively on the outside and inside of the door of the container office[2].

18.PC 20696 arrested D1 at his home in Yuen Long on 10 October 2019.  Under caution, he claimed that his boss told him to work at the Site at 3:00 a.m. that day.  A crane lorry picked him up.  They then entered the Site, took 2 drums of cable and delivered them to Wang Chau in Yuen Long.  His daily wage was $700.  D1 said he was just going to work on that day.

19.D1 repeated the same explanation in his video recorded interview.  He gave more details about his day job and his supervisor.

Mitigation & Sentence

D1

20.He is 23 and has 1 conviction record (STCC 3577/2019), which involved 1 theft-related offence and 1 drug-related offence.  His counsel Mr. Sherry informed me that D1 was of clear record at the time of the present offence.  Mr. Sherry also fairly informed me that D1 committed the present offence whilst on police bail for the offences in STCC 3577/2019.

21.In mitigation, Mr. Sherry submitted that D1 was a casual worker of HKTVmall.  He is single and resides with his father. Mr. Sherry stressed that D1's involvement in the present case was limited; he had no knowledge of the existence of PW1, needless to say his injuries or his loss of $7,000 cash.  The 2 drums of cable were returned to Leighton[3].  The only benefit gained by D1 was $700.  Furthermore, D1 has admitted as much of the prosecution case as he could in his trial.

D2

22.He is also 23 and has a clear record.  According to his evidence, D2 worked as a chef prior to his arrest.  He also holds an associate degree.

23.In mitigation, D2's counsel Mr. McGuinniety submitted that D2 has learned his lesson.  He accepts in full his culpability and has assisted the prosecution by giving evidence against D1.  In view of the court's assessment of D2's evidence, Mr. McGuinniety explained that D2 is not a professional witness.  His performance in the witness box perhaps did not come up to the mark, he nevertheless made the effort in giving evidence.  A letter written by D2 was placed before me; its contents are duly noted.

Sentence

24.I have reminded myself to sentence D2 based on the Summary of Facts[4] instead of the evidence presented before me in D1's trial.  On the other hand, D1 denied any knowledge of the existence of PW1 and was only convicted of "Theft" of the cables after trial.

25.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  A clear message must be conveyed to the general public that robbery is a serious crime and that the offenders would most certainly be punished by long-term imprisonment.

26.I accept there is no evidence showing that any weapon was displayed or used against PW1. On the other hand, substance was sprayed in his eyes; he was tied up and assaulted; and he sustained injuries.

D2

27.According to HKSAR v Chan Sai Chiu [2001] 1 HKLRD 478, for a robbery involving "pepper-throwing", the appropriate starting point is 4 years' imprisonment. The violent treatment of PW1; the value of the 2 drums of cable; and the involvement of multiple culprits with advanced planning are all aggravating factors. I consider a starting point of 5.5 years' imprisonment appropriate for the present charge.

28.I accept that there is no evidence showing D2 had participated in the attack of PW1; however, he played his part in the entire robbery of the cables as well as PW1's cash. In my view, D2's culpability perhaps justifies a lower starting point of 5 years' imprisonment. With his timely guilty plea, the sentence is reduced to 40 months.

29.D2 gave evidence for the prosecution in D1's trial. I did not find him to be a credible or reliable witness. I also found that his role in this case is not as limited as he portrayed in the witness box. On the other hand, I found that even if taken to its highest, D2's evidence was only capable of proving that he was recruited by D1. D2 was unable to say anything about D1's knowledge of PW1's existence at the Site or having been subject to violence in the container office. Hence, D2's evidence, even if accepted by this court, could not have assisted the prosecution much. After due consideration, I have decided to grant him a nominal discount of 3 months for giving evidence for the prosecution[5]. Thus, further reducing his sentence to 37 months, which amounts to an overall discount of almost 38%. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 37 months' imprisonment.

D1

30.He is convicted of "Theft" of the cables after trial. Based on the value of the stolen cables, I consider a starting point of 2.5 years' imprisonment just and appropriate.

31.In mitigation, Mr. Sherry mentioned a plea offer made to the prosecution in October 2020, which was rejected. Notwithstanding the rejection of his plea offer, D1 was at liberty to plead guilty to "Theft" at the arraignment, but he did not do so. A plea offer is not a guilty plea.

32.Today, right before I delivered my Reasons for Sentence, Mr. Sherry made further submissions on this issue by relying on the Court of Appeal's decision in HKSAR v Lam Kai Man [2020] 4 HKLRD 107. Mr. Sherry explained that it was a tactical decision not to admit the offence of "Theft" or "Handling of stolen goods" since he was concerned with the inherent dangers of the court convicting D1 of "Robbery" with such admissions lingering. Mr. Sherry stressed that he did not challenge any of the evidence which formed the basis of D1's conviction of "Theft". Hence, D1 should be given some degree of guilty plea credit.

33.Mr. Sherry's argument may seem attractive at first sight. After due consideration, I have come to a different view. Perhaps Mr. Sherry did not challenge any of the evidence which formed the basis of D1's conviction of "Theft" of the cables; however, the line of defence he ran was that D1 thought it was just a moonlighting job of moving the cables, and he detected nothing improper or sinister about it. In his final submissions, Mr. Sherry mentioned the "papers" found on D1[6] and the fact that he showed his ID card to PW3 and PW4 as well as signing the receipt at the Yard. Mr. Sherry submitted that no reasonable thief would have knowingly disclosed his personal particulars in the course of committing an offence.

34.D1 was certainly entitled to run his defence in such a way (and it was probably a wise and sensible manoeuvre too). As described by Mr. Sherry, it was a tactical decision. I, however, do not consider D1's line of defence consistent with any intention of admitting "Theft" or "Handling of stolen goods". Under such circumstances, I am unable to grant D1 any discount in this regard.

35.For the purpose of sentencing, I am prepared to treat D1 as having a clear record. On this basis, I exercise my discretion to grant him a discount of 2 months. I sentence D1 to 28 months' imprisonment.