COURT: Defendant, on 4 January this year, that is 2021, you pleaded guilty to two offences before a magistrate sitting at Eastern Magistracy. The 1st charge was that of attempted robbery and the 2nd charge to which you pleaded guilty was robbery.
You admitted that in respect of the 1st charge of attempted robbery, on 7 March 2020, at the Circle K Convenience Store at On Yam Estate in Kwai Chung, you attempted to rob Chu Pui-lin. In respect of the 2nd charge of robbery, you admitted that on 12 March 2020, at the 7-Eleven Convenience Store at Silka Tsuen Wan Hotel in Kwai Chung, you robbed Liang Huantao of cash $1,900 and a packet of cigarettes.
On 7 March 2020, at around 1.55 am, you were inside the Circle K Convenience Store. At that time, there were two employees working there: the first being the victim of the charge, female, a Ms Chu, and the other being a Ms Chan. You asked for one of the ladies’ attention as you were standing by the cashier counter. Ms Chu walked to the cashier counter, intending to serve you. You then immediately displayed a fruit knife and said, “Robbery.” She felt scared, picked up a rubbish bin to protect herself.
Ms Chan who was in another location in the store heard Ms Chu shouting and saw you pointing a knife at Ms Chu. Ms Chan ran out of the shop and shouted, “There is a robber.” You left immediately without taking anything. Ms Chu did not sustain any injury, and a report was made to the police.
In respect of the 2nd charge of robbery, that occurred on 12 March 2020. The victim there was also an employee of 7-Eleven, working on her own. At around 4.06 am, she saw you in the store, so she walked towards the cashier counter. You told her that you wanted a packet of cigarettes. When she turned around to get the packet of cigarettes from the shelf and placed it on the counter, you suddenly took out a cutter and said, “Robbery. Take all the money out.” You then pushed out the blade from the cutter and pointed the blade towards Ms Liang. Ms Liang was frightened and told you to put the cutter away.
A customer suddenly entered the 7-Eleven and you put the cutter away but kept telling Ms Liang to hurry up and take the money out. She then took out $1,900 in cash from the cashier machines and gave that money to you. You then left. You also left with a packet of cigarettes. A report was made to the police and police officers arrived and seized a cutter outside the store.
On both occasions, you were wearing a surgical mask. In an identification parade held, the employees in the Circle K were unable to identify you. However, the employee in 7-Eleven positively identified you at an ID parade. CCTV was installed at both stores and captured both incidents of robbery and attempted robbery.
I am told by Ms Chan for the prosecution, which is not challenged by Mr Leung, counsel for you, that the police then analysed the CCTV after the robbery on 12 March and was able to trace you to Shek Fu House of Shek Lei Estate in Kwai Ching.
On 12 March, police officers laid ambush at Shek Fu House. And at around 5.45 pm, you appeared coming out of the house wearing similar clothes to that of which you had robbed the 7-Eleven store. You were arrested and cautioned in relation to both charges after which you said, “I’m just jobless and have no money to spend, therefore I robbed.”
Two video-recorded interviews were conducted, to which you admitted committing these offences. The reason for you doing so was because you were hungry and had no money to eat. In both those interviews, you said you found or picked up the knife and the cutter. I am going to say outright that I reject that fact that you had just found and picked up those weapons.
Defendant, you are 27 years of age and are educated up to Form 4. You have two previous convictions on the same occasion, and that is in 2013, you were convicted of two charges of dealing with goods to which dutiable commodities apply and you were given suspended sentences.
You are single and living in Kwai Chung with your father and younger brother. You do not have any health problems and you are not a drug abuser. Mr Leung Po-sang, your counsel, has made full mitigation on your behalf, defendant. In short, he says that as a result of the social movement and pandemic, you were laid off by the company as a warehouse worker in February 2020. You had made every effort to find a new job but to no avail. You had no savings. And as a result of you reading a newspaper, you noticed that it could be an easy way to make some quick money by robbing convenience stores at night. As you had almost run out of cash in early March 2020, you decided to imitate that and give it a try.
Mr Leung stresses that in the 1st count of attempted robbery, you were a newbie or a novice, as can be seen by the facts you were so frightened that you gave up and left the store with nothing. Moreover, he says your inexperience as a robber shows in that you did not wear gloves, and that is why your palm print was left on the metal handle of the glass door at the 7-Eleven store. Furthermore, you did not even change your clothes after the second robbery and the police were able to identify you easily from the CCTV and coming out from Shek Fu House.
As I mentioned, I reject your case that you just picked up the knife and the cutter because clearly this was a pre-planned robbery. Mr Leung has indicated that your strongest mitigating factor is your early admission to this offence, that is, when you were intercepted by the police, subsequently in all your video-recorded interviews, and of course, your plea of guilty at the first opportunity. Mr Leung is aware of the cases that the prosecution has submitted, which are those of Mo Kwong Sang, Lam Hoi and Ng Ping Tak, and informs this court that you are aware of the usual tariff for these offences and you do not intend to dispute them.
Defendant, clearly in this case you had attempted to rob and robbed at two convenience stores in the early morning, wearing a mask. These robberies were clearly pre-planned, taking place in the early hours of the morning and targeting convenience stores as you frankly admit that this was an easy, quick way of making quick money by robbing convenience stores at night. Each of the robberies involved the use of weapons and were displayed to the shopkeeper, that is, either a fruit knife or a cutter. I accept that no injury was inflicted on anyone and no actual violence was used on the victims.
The guideline case for armed robbery is that of Queen v Mo Kwong Sang [1981] HKLR 610. The appropriate sentence in an ordinary case of armed robbery where the defendant carries a knife which is displayed to the victims should be a starting point of 5 years’ imprisonment. So that is a starting point which I take.
There are aggravating factors in this case. The first is that this is not a single offence but you have committed two offences, within a period of five days, of a similar kind. The second of which is the fact that you had targeted convenience stores in the middle of the night. These are clearly aggravating factors as the Court of Appeal laid down in HKSAR v Lam Hoi, CACC 105/2016 and HKSAR v Ng Ping Tak CACC 52/2019.
In Ng Ping Tak, the Court of Appeal at paragraph 15 stated that:
“The judge rightly regarded the fact that the victims were the staff of convenient stores as an aggravating factor. This was in accordance with binding judgments of the Court of Appeal in HKSAR v Lam Hoi, HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 699 and HKSAR v Wong Cheung [2011] 5 HKLRD 171.”
McWalters JA (as he then was) continued at paragraph 15:
“I note that in Lam Hoi, the Court of Appeal held that an enhancement of 1 year imprisonment was appropriate for that defendant, but emphasised that it should not be taken as a norm for this particular aggravating factor.”
In Ng Ping Tak, the sentencing judge adopted the same level of enhancement of 1 year, of which the Court of Appeal did not interfere with. At paragraph 17, McWalters JA went on to say:
“Notwithstanding that there is nothing to indicate the judge erred in the exercise of his discretion can it be said the length of his enhancement is so outside of the range of enhancement that any sentencing court could reasonably impose that it must be excessive. I do not think it can. The highest that it can, arguably, be put is that it is towards the high end of the range but is not outside the range.”
In the circumstances in this case, defendant, I do not intend to take a 1-year enhancement. You committed these two offences alone and not with other co-defendants, culprits. In the circumstances, I adopt enhancement of 9 months’ imprisonment.
Therefore, the starting point had you been convicted after trial, I would have taken a sentence of 5 years and 9 months for each offence. Giving you full credit for your early plea of guilty, I reduce that term by giving you the full one-third discount, and you should be sentenced to 3 years and 10 months on each charge. In the present case, however, defendant, you have committed two offences and I must have regard to the appropriate totality of your sentence and overall culpability for these two offences.
In my judgment, I take a notional starting point of 8 years’ imprisonment in order to reflect the overall culpability of the two offences of robbery. That is one of attempted robbery and the other of robbery. After a one-third discount, the total sentence will be 5 years and 4 months’ imprisonment. To reflect that term of 5 years and 4 months’ imprisonment which you shall serve, I order 1 year and 6 months of Charge 2 to run consecutive to Charge 1 and the remainder of the term concurrent.