COURT: At 2.23 am on 15 November 2019, So Chi-ming (hereafter referred to as “the accused”) went to a 7-11 convenience store at Chevalier Garden in Ma On Shan. He approached the cashier with an energy drink which he had taken from the store and said to the cashier he didn’t have any money and left. About four minutes later, the accused returned and told the cashier that he wanted to purchase the energy drink that he had walked out with. Suddenly the accused pointed a knife at the cashier and demanded that she open the drawer. He took all the money totalling $2,290 and took five packets of cigarettes. The cigarettes were valued at $295. He then fled and the case was reported to the police. The accused made admissions in relation to this event, including identifying himself on the CCTV recording of the robbery. Subsequent police investigation located the energy drink and the fingerprints of the accused were found on that item. Further, at an identification parade held on 15 December 2019, the cashier of this store positively identified the accused. These events became the subject of Charge 1 on the indictment.
The Waterside at Ma On Shan
At about 2 pm on 1 December, the accused went to the 7-Eleven convenience store at The Waterside at Ma On Shan. He purchased a can of beer and left. About five minutes later, he returned to the store where he took a pack of chewing gum and purported to pay with a banknote. When the cashier drawer was opened, the accused tried to take away the money in the drawer. However, the cashier tried to stop him but was punched in the eye four times. As a result, the accused took away the cash amounting to $1,855. The case was reported to the police. The cashier of the store found a knife on the cashier desk. The accused made admissions about his participation in this robbery and identified himself on the CCTV of the event. He was positively identified by the cashier of the store in an identification parade in 15 December 2019. These events became the subject of Charge 2 on the indictment.
Tung Choi Street, Mong Kok
At 9.20 pm on 12 December 2019, the accused entered a 7-Eleven convenience store in Tung Choi Street in Mong Kok. The accused took a bottle of water and approached the cashier with a $20 banknote. When the cashier opened the cashier drawer, the accused pushed her away and took approximately $4,600 from the cashier drawer. The cashier tried to stop the accused but failed. He fled the store and the police were called. This cashier was subjected to violence but did not sustain any injury. The accused made admissions as to his participation in this robbery and identified himself as the robber on CCTV of the events. These events became the subject of Charge 3 on the indictment.
Lek Yuen Estate in Sha Tin
At 3.40 am on 13 December 2019, the accused entered a convenience store in Lek Yuen Estate in Sha Tin. At the store, he purchased a can of beer and drank it. About 10 minutes later, he returned to the store purporting to buy another can of beer. He took out a knife from his jacket and pointed it at the cashier. He declared that it was a robbery and told the cashier that he would not be hurt. The accused then took all of the banknotes from the cash drawer totalling $2,800 and took nine packs of cigarettes from the shelf valued at $531 and fled. The case was reported to the police. The accused made admissions as to his participation in this robbery and identified himself as the robber in the CCTV taken of these events. Further, the accused was identified by the cashier at this store in an identification parade conducted on 15 December 2019. In addition to that, a fingerprint was lifted from a cigarette packet consistent with one of the packets stolen by the accused and the fingerprint matched that of the accused. The can of beer purchased by the accused had his DNA on it. These events became the subject of Charge 4 on the indictment.
The arrest of So Chi-ming
On 14 December 2019, the accused was intercepted by the police and after enquiries he first admitted that he went to the 7-Eleven Store at Lek Yuen Estate on 13 December 2019. He was thereupon arrested and cautioned. In answer to the caution, he admitted the robbery at Lek Yuen Estate and indicated his involvement in robberies at Chevalier Garden and The Waterside.
In due course, the accused participated in a series of video-recorded interviews. He made full admissions as to each of the four robberies to which I have just referred.
Procedural history
Following these admissions, on 16 December 2019, the accused came before a magistrate charged with robbery. Ultimately the charges levelled against him are the four robbery charges in the committal charge at page 32 of the bundle. On 23 November 2020, the accused appeared before Mr Cheang Kei-hong, sitting as a permanent magistrate in the Eastern Magistrates’ Court. On that date he pleaded guilty to all four charges and admitted the Summary of Facts, the essence of which I have just related. The accused was committed to this court for sentence.
Antecedents and mitigation
The accused is a 50-year-old man who was born in Hong Kong. He is a widow and has a 22-year-old son. He lives with his mother aged 74.
The accused has a series of criminal convictions, the first being in 1988 and the last two being in February and November 2017, and they are related to illegal gambling. The previous convictions are, in my view, largely irrelevant for sentencing purposes.
Sentencing principles
Sentencing for armed robbery
Armed robbery is a serious offence. Section 10(2) of the Theft Ordinance provides that the maximum sentence for robbery is life imprisonment.
The courts of Hong Kong have recognised the seriousness of robbery for many years. In 1981, the Court of Appeal provided guidelines for sentencing for robbery. Before dealing with those guidelines, it is appropriate to mention there are other guidelines for robbery with firearms not applicable to this case. In Mo Kwong Sang v The Queen [1981] HKLR 610, the Court of Appeal held that the baseline sentence for robbery is 4 years. If the robber carried a knife or other dangerous weapon other than a firearm, a sentence of 5 years’ imprisonment would be appropriate. A further year might be added if the robbery involved the invasion of private premises. A further year might be added if the robbery involved physical violence including tying victims up. The Court of Appeal said that if there were other aggravating features present such as the invasion of domestic premises during the night, threats made to the victims, ill-treatment of victims, multiplicity of offences of a similar kind of robbery or a robbery in company, that should attract additional penalty.
In HKSAR v Wong Cheung [2011] 5 HKLRD 171, the Court of Appeal held that robbery in a convenience store was a particularly serious form of robbery. Indeed, the Court of Appeal noted that the robbery of a convenience store is very serious because they are open 24 hours and often carry large accounts of cash, thus being very tempting targets for robbers. The court held that heavy deterrent sentences are called for to prevent these shops from falling prey to robbers. ([2011] 5 HKLRD 171, §16)
Totality
It is recognised that where an accused faces more than one charge that the aggregation of what would be a perfectly justified sentence for each of the charges would be likely to produce injustice. Accordingly, in sentencing for multiple offences on the same indictment, the court must consider the totality of any sentence which is imposed: The Queen v Tong Hoi Fung [1988] 1 HKLR 610. Indeed, the court in HKSAR v Wong Cheung (above) made the same precise point.
Discount for plea of guilty
The authorities recognise that this court should accord to a person who pleads guilty at the earliest practicable opportunity a discount from an otherwise merited sentence of 33 per cent.
Application of sentencing principles
On any view, each of these incidents is very serious. They were robberies of convenience stores and, with one exception, they were robberies either at night or in the small hours. In my view, the staff of such stores are in a very vulnerable position, and, as the court in Wong Cheung (above) observed, the amount of cash that is often found in such stores make them a tempting target. That case compared robberies of convenience stores with robberies of banks and goldsmith shops. An argument could be mounted that the robbery of a convenience store is comparatively more serious given the security often seen in banks and goldsmith shops. However, for the purpose of this case, the message given in that case is the appropriate sentencing approach is more than adequate to deal with this case.
In my judgment, the appropriate thing is to assess the criminality of each event individually and then adjust for totality. Part of the reason for adopting such an approach is there are differences between the robberies which are germane to the issue of appropriate sentence for that individual case. On that premise, the appropriate sentence for each of the individual robberies is as follows:
(1) Charge 1, Chevalier Garden in Ma On Shan. This was a robbery where a knife was produced, the cashier threatened and cash and cigarettes were taken. Applying Mo Kwong Sang (above), that would require a starting point of 5 years but I consider recognising the seriousness of robbing convenience stores and I consider the appropriate starting point to be 6 years.
(2) Charge 2, The Waterside, Ma On Shan. This was a robbery where the cashier resisted the robbery and serious violence was inflicted upon her. A knife was later found but does not appear to have been used to threaten the cashier. Cash was taken. The violence was substantial and appears to have been gratuitous. Indeed, the injury to the eye of the cashier appears to have been a permanent matter and that is quite serious. Permanent gratuitous injury is itself an aggravating factor. Applying the guidance I have just referred to, I think a starting point would have been appropriate, but for the reasons I have just outlined, I think a starting point of 8 years is appropriate.
(3) Charge 3, Tung Choi Street. This was a robbery where the cashier resisted and some violence was used. There is no evidence of a knife being used. Cash was taken. Applying the guidance to which I have just referred, I think a starting point of 5 years would be appropriate, but for the reasons I have just mentioned, I think a starting point of 6 years is correct.
(4) Charge 4, Lek Yuen Estate in Sha Tin. This was a robbery where a knife was used to threaten. In the course of the robbery, cash and property was taken. Applying the guidance to which I have referred, I think a starting point of 5 years would be appropriate but I consider 6 years to be an appropriate starting point for the reasons I have outlined.
I should add that there is conduct in each of the robberies which is consistent with the accused surveying the scene at the robbery to ascertain whether it was susceptible to robbery. I refer in this regard to the initial purchase or, in one case, the taking of a knife. The suggestion that these robberies were spontaneous is utterly untenable.
The next issue to be considered is totality. If the starting points were aggregated, the accused would be facing a total of 26 years’ imprisonment. Given the manner in which these robberies were committed and, in particular, the use of force or the threat of force and the gratuitous violence in one of the robberies, it is tempting to conclude that it is hard to move from 26 years. However serious as these robberies are, I think a total of starting point of 12 years would meet the case.
The principal mitigation in this case is the plea of guilty and the early admissions to the police. I can see no other mitigation. The assertion that this man was short of money does not amount to mitigation.
Resolution
Would the accused please stand up? In my opinion, this is a cowardly set of robberies and on vulnerable cashiers in vulnerable premises. The claim that the accused needed money simply does not wash. One of the robberies where there was gratuitous and cowardly violence, including what might well be a permanent injury, is a very serious matter.
Applying the recognised discount to the starting point of 12 years, the least sentence that can be passed upon this accused is an overall sentence of 8 years. Given that there are four separate counts on the indictment, what I propose to do is order that the accused be sentenced to 8 years’ imprisonment on each count, to be served concurrently, and that is the order of the court.