HKSAR v. Lee Pak Wing Almond

HCCC 358/2020

[2021] HKCFI 2056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 358 OF 2020

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BETWEEN

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Before:  Deputy High Court Judge D Yau in Court

Date of Hearing:  9 July 2021

Date of Sentence:  9 July 2021

Date of Reasons for Sentence:  9 July 2021

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REASONS FOR SENTENCE

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Reasons for sentence

1.The defendant pleaded guilty to one count of robbery[1] and one count of assault occasioning actual bodily harm[2] before a magistrate and was committed to the Court of First Instance for sentence.

Summary of facts

2.The defendant entered Lukfook Jewellery shop at ground floor of 36-38 Argyle Street at around 11:15 am on 13 February 2020, wearing a cap and facial mask.  He held a transparent bottle containing some liquid, which smelled of gasoline, and told the five staff members there that it would catch fire, after splashing the liquid on the showcases.

3.The defendant then took out from his pants’ pocket a pistol-like object and pointed it at two of the staff sitting behind one of the showcases. The defendant declared robbery and demanded them to take out all the gold.  At this point, one of the staff ran out of the shop and made a report to the police.

4.Meanwhile, the defendant remained in the shop and told the staff to act quickly and not to go out as someone was setting a fire outside.

5.The two staff members took out the jewelries from the showcases and the defendant put them into a plastic bag, placing the pistol like object on a chair while doing so, and then picking it up again and pointed it at the staffs and told them to take out more jewelleries.

6.The defendant left the shop after about two to three minutes with the bag of jewelleries and the pistol like object, warning the staff not to go out of the shop or someone from his group will set fire.

7.Despite what the defendant said, the staff went after him, and he was eventually subdued, together with the help of an off-duty police officer at the junction of Argyle and Tung Choi Street.

8.In the course of the interception, the defendant bit one of the staff’s hand, causing an abrasion (count 2).  The bag with the stolen jewelleries was recovered and the shop did not suffer any losses.  The total value of the stolen properties was $1,954,135.

9.The defendant was arrested and cautioned.  He exercised his right and remained silent.

10.The pistol like object was found to be a spring powered air gun designed to discharge 6mm calibre plastic balls with muzzle energy of less than two joules.

11.The liquid that the defendant splashed inside the shop was found to contain highly flammable organic solvents, being common constituents in paint thinner mixtures.

12.In the subsequent video recorded interview, the defendant claimed that he owed a finance company over $100,000 and that they had been disturbing him with phone calls, chasing after him for repayment.  The defendant decided to rob in the morning and bought the air gun on the day, thinking that he would have a higher chance of successfully committing the robbery with it.  He intended to sell the stolen items to repay his debt.

Previous convictions

13.The defendant has no previous convictions.

Background and Mitigation

14.The defendant was born in mainland China.  He is 53, married with three sons.  He came to Hong Kong in 1978 to reunite with his family and studied up to Form 5 here.  His eldest son is 27 and a graduate of University of Hong Kong, working as an architect.  His second son is 26, a PolyU graduate and a social worker.  His 18-year-old son has just finished high school in the UK and has started his mass media studies in the Hong Kong Institute of Vocational Education.

15.The defendant also looks after his 83-year-old wheelchair bound mother.  The defendant has two younger brothers, one a club manager and the other working in a funeral service company.

16.The defendant had been employed as a logistic worker since 2007 and had worked hard to provide for his family, working 6 to 11 additional hours a day.

17.As a result of the serious economic downturn in 2019, the overtime work dried up.  In fact, the defendant became unemployed in late 2019.

18.Before the defendant was made redundant, but after the overtime work had ceased, in order to continue to support his youngest son’s overseas studying expenses, he took out a $160,000 loan from a finance company at very high interest rates.  This got him into more financial difficulties.  The defendant lost his bearing and resorted to gambling.  He lost all his money.

19.The defendant lost his job just before he committed the robbery. He had not told anyone about his financial situation.  He had been receiving debt chasing phone calls every day.  He had no one to talk to and could not see a way out.  He made up his mind to rob in the morning of the offence.  He was still struggling with his decision and was hesitating outside the shop for a while when another debt chasing call came and that was the last straw.

20.The defendant is sorry for what he did and apologizes for hurting the hand of the staff as well as causing trouble to all concerned.

21.Ms Vivien Chan for the defendant submits that the defendant is deeply remorseful and reminds the court that he had been a law abiding citizen for the past 50 years.  He is a loving and caring father to his children and son to his elderly mother.  The defendant committed the offences entirely out of character.

22.The defendant’s wife, children and brother wrote in mitigation on his behalf.  The letters paint a picture of the defendant being a traditional person who does not express his feelings readily.  Yet, he has always been supportive of his family and would always put them ahead of himself.

Sentence

23.The maximum sentence on conviction upon indictment for the offence of robbery is that of imprisonment for life.

24.In the case of R v Yu Tai-wing [1995] 2 HKCLR 119, the Court of Appeal laid down sentencing principles for robberies involving the use of imitation firearms:

“For policy reasons, we take the view that in the case of bank robberies, a jewellery shop and goldsmith shop robberies, security van or payroll robberies and such the like, no distinction should be made between cases where genuine firearms are used but not discharged and those in which imitation firearms are used.”

25.In the case of HKSAR v Wong Wai Keung [2003] 3 HKLRD 39, the applicant entered banks with hoax bombs and poured thinner onto the counters when demanding money.  The Court of Appeal confirmed that for robbery of a bank or a jewellery shop in which firearms were involved, but not used, a starting point of 15 years was appropriate.

26.There the grounds of mitigation put forward by the applicant are very similar to those put forward by the defendant in the present case.  In that case, the applicant said he failed in his businesses and was heavily indebted to banks and his landlord.  He was unable to borrow any more money from friends and relatives to support his family, particularly his two young daughters.  He was forced by circumstances to commit the robberies.  He only used fake bombs and heavily diluted thinner as he never intended to harm anyone or cause any damage to properties.

27.The Court of Appeal reiterated that for bank robbery or goldsmith shop robbery in which firearms were involved, but not used, a starting point of 15 years’ imprisonment is appropriate.  The Court took into consideration that the applicant not only armed himself with fake bombs but poured thinner onto the counters.  They found the seriousness of what the applicant did lied in the fear that he tried to instill into the bank staff.  They found that the fact that only fake bombs and heavily diluted thinner were used made little difference.  They added that if the applicant actually caused explosions or fire in the course of the robberies, the starting point would have been much more than 15 years.

28.They are of the view that the sentencing judge was entitled to conclude that the robberies there were as serious as robberies of banks with the use of imitation firearms.

29.Lastly, the Court found that none of the matters put forward by the applicant, including the hardship that his family faced and the impact of the sentences on his young daughters, were significant mitigating factors for the serious offences of robbery and attempted robbery in question.

30.In the case of HKSAR v Mak Chi Ho, CACC 290/2007, the applicant pleaded guilty to one count of robbery and one of attempted robbery. He acted alone in the early hours of the morning, carrying a convincing imitation firearm on each occasion and pointed it at the counter staff of the two convenient stores involved, while declaring robbery and demanding money.

31.The Court of Appeal approved the learned sentencing judge’s application of the sentencing principle concerning imitation firearm in the above cited case of Yu Tai-wing, as well as the starting point of 10 years’ imprisonment for each of the two counts.

32.In the case of Secretary for Justice v Lee Chun Ho Jeef, CAAR 9/2008, the Court of Appeal confirmed that the appropriate starting point for robbery using imitation firearms is 10 years’ imprisonment.  The Court also found that personal difficulty and/or financial hardship are not mitigating factors for robberies using imitation firearms.  There is, however, one difference between that and the present case in that the robbery there was committed on a woman while in a public place and not in a jewellery shop.

33.In the case of AG v Man Yui-to, CAAR 6/1984, the Court of Appeal stated that, “The normal sentence to be expected where a person takes part in an armed robbery upon a bank or upon a jewellery or similar shop is one of twelve to fifteen years”.

34.When read together, the cases of Yu Tai-wing and Man Yui-to suggest that the starting point for robbery of a jewellery shop with imitation firearms should be 12 years’ imprisonment.

35.This is the starting point that I adopt.

36.As to the defendant’s personal circumstances put forward in mitigation, despite my sympathy towards him, the authorities clearly showed that they should not be regarded as mitigating factors that would warrant a departure from the guideline sentence, and out of consistency and fairness, I will not grant the defendant any discount on this basis either.

37.Even if we accept that the defendant acted out of character, it cannot be overlooked that the defendant not only bought the air gun but also the thinner in order to commit the robbery.  There was some degree of planning in his action and although he had the chance to withdraw, as shown by the time he had spent outside the shop, he eventually decided to go ahead.  But for the courage shown by the staff and the off duty police officer, the defendant could very well have succeeded in getting away with the stolen property.  He must bear the full consequences of his action.

38.The defendant is, therefore, sentenced to eight years’ imprisonment after granting him the full one-third discount for his timely plea of guilty to the robbery charge.

39.As for the assault occasioning actual bodily harm, I will adopt a starting point of three months’ imprisonment and discount it to two months after plea.  I order that the sentences be served concurrently in application of the principle of totality.

40.The defendant is sentenced to eight years’ imprisonment for the two counts.

Mr Fergus Chau, SSP of Department of Justice, for HKSAR

Ms Vivien Chan, instructed by Tang & Lee, assigned by Director of Legal Aid, for the Defendant