The facts of the case may be summarised as follows. D1, D3, D4 and a person named Tse entered a watch shop and robbed inside. D2 was the driver for the robbers.
PW1 was the shop owner of the watch shop. When he and a staff were serving two customers, Tse entered and declared robbery. He brandished a knife at PW1 who at once hid under the table. D1 then smashed a showcase with a hammer. D4 grabbed watches into a backpack and D3 was guarding the door, holding a knife. Tse also pointed the knife at PW1 and ordered him to open the safe. When PW1 opened the safe, Tse took the money inside. The robbers then fled in the car D2 drove.
When a passer-by heard the alarm, he stopped a minibus so that the robber’s car would be caught in the traffic. However, the defendants and Tse alighted from the car and managed to flee. $70,000 were left in the car. The robbers had taken 48 watches valued at $2.88 million and cash of $70,000.
In the course of the robbery, PW1 suffered the following injuries: 1 cm cut over his left ear; superficial cut over his right index, middle and ring fingers; 2 cm laceration over his left forearm and 5 cm deep laceration over his left elbow.
Fingerprint and/or DNA of D2 and D4 were found on various items in the getaway car. The car had been stolen four months prior to the robbery.
Two weeks later, D1 was arrested. He admitted to have been involved in the robbery and had received $30,000 as reward. He was introduced to the robbery plan a few days prior to the offence. On the day, he met up with the other robbers and was given a hammer. He said he had spent most of the reward and the $2,700 seized from his home was the money not yet spent.
D2 was arrested also two weeks after the robbery. He admitted involvement by driving a car which had been stolen by others. On the day, he drove the car to pick up the robbers. He saw two were equipped with knives and one with a hammer. He received $40,000 as reward.
D3 was arrested about one month after the robbery. He admitted to have participated for a reward since he was in need of money. On the car, he met the other robbers and each of them was assigned a task. He was equipped with a knife and guarded the door. He said he saw Tse chop a staff who was uncooperative. He received $50,000 as reward.
D4 was arrested one month later than D3. He admitted his participation and said he was tasked to snatch the watches. He knew two of them were each equipped with a knife. He was promised a reward of $30,000 but had only received $10,000.
D1 is 20 years of age. He completed secondary education and had worked as a construction worker. He is single and was living with his parents and sister. In 2014, he was put on probation for an offence of AOABH.
D2 is also 20 years of age. He completed Form 3 education and had worked as a construction worker. He is single and was living with his parents. He did not have any criminal record.
D3 is 23 years of age. He completed Form 3 education and had worked as a mechanic worker. He is single and was living with his girlfriend. He did not have any criminal record but was bound over in 2019.
D4 is 24 years of age. He completed Form 2 education and had worked as a construction worker. He is single and was living with one of his elder brothers. In 2016, he was put on probation for an offence of attempted criminal damage.
In mitigation, learned counsel for D1, Mr Cheung, stressed that D1 was only 18 years old at the time of the offence and had pleaded guilty at the earliest opportunity. He said the defendant is full of remorse and is determined to turn over a new leaf. Mr Cheung asked me not to treat D1 as having absconded even though he had left for the mainland on the day of the offence as he only stayed there for fun and had returned in a week’s time. I agree to the approach as submitted. Mr Cheung also asked me to disregard the previous conviction record of D1 which was committed by him when he was only 13 years old.
I accept that in all the circumstances, the sentence should not be enhanced for this record even though the defendant should not be regarded as a person without any previous criminal conviction record. The same applies to D4. In any case, there is clear authority that for an offence as serious as the present one, previous clear record is not a significant mitigating factor.
The defence produced letters written respectively by the defendant and his sister which I have considered. D1 expressed remorse and his sister pleaded leniency for the defendant.
Learned counsel for D2, Ms Priscilia Lam, informed the court that D2 came to Hong Kong at the age of 13. His studies performance in the mainland had been good but he was not able to catch up here. The father of D2 is now aged 71 and his mother, as the sole breadwinner of the family, was not able to provide sufficient supervision to the defendant. In the circumstances, D2 went astray and ceased education after Form 3. He then worked in the construction field and had been giving monthly financial contribution to the family.
Ms Lam asked the court to accept that D2 had been asked to drive the car and he was only told about the robbery in the course of driving to the destination. Realising the situation, D2 had thought of withdrawing but had participated under the temptation of making quick money and peer pressure of the others.
Ms Lam submitted that the culpability of D2 was lower than the others as he did not expect or foresee others would use violence inside the shop. She asked the court to accept that commission of the offence was out of the character of D2 and he is now very remorseful. Ms Lam also asked the court to take into account that some of the stolen properties had been recovered.
Learned counsel for D3, Mr James Tze, informed the court that D3 participated as he was in need of money and he submitted that D3 was not the person who initiated and planned the robbery. Despite a person was injured, it was caused by the person called Tse and it was never the intention of D3 to cause any injury to anyone.
Mr Tze also told the court that D3 had only received $50,000 as reward. He also asked the court to take into account that some of the stolen properties had been seized or recovered.
The defence produced a letter written by the defendant in which he expressed remorse and informed the court that his girlfriend had lost their baby due to complicated pregnancy. The mother of the defendant is in court to show support.
Learned counsel for D4, Mr Ng, informed the court that despite D4 had siblings, he was the main breadwinner of the family. His father had passed away when he was a young boy and his mother has been suffering from ill health.
D4 became unemployed in 2019 and in the difficult financial circumstances, he agreed to take part in this case. His understanding was that the weapon would only be used to threaten the victims and not to cause any actual harm. He is now in full remorse.
The defence produced a letter written by the defendant and also letters by his family members and a teacher. D4 said he was the main breadwinner of the family and it was under extreme financial pressure that he had taken part in this offence. He expressed remorse.
His family members said that D4 is a person of good nature and he had been shouldering responsibility for the family, in particular for the need of the mother who is suffering from ill health. The health of the mother has deteriorated after having known the situation of D4.
In sentencing, I take into account the factors as stated in the case of Mo Kwong Sang v R [1981] HKLR 610, SJ v Ma Ping Wah, HKSAR v Ting Chiu [2003] 3 HKLRD 378, SJ v Li Man Biu, CAAR 4/2000 and HKSAR v Man Siu Ming, CACC 318/2011. I have also considered the cases submitted by counsel including the followings: HKSAR v Qin Lewu [2020] HKCFI 3067; HKSAR v Lai Ka Fai, HCCC 141/2016; R v Yip Kin Chit, CACC 275/1996; HKSAR v Tam Hon Chu(?), CACC 168/2020.
The robbery in the present case was clearly premeditated. The target was a shop which was expected to have properties of substantial value and significant amount of cash. In fact, the loss caused in the present case exceeded $2.5 million.
In HKSAR v Cheng Wai Kai, CACC 339/2007, the Court of Appeal held that the starting point could be adjusted upwards if the offence targets a substantial premises and involves substantial properties. It was a burglary case. In HKSAR v Pau Lai Sing [2010] 3 HKLRD 233, the Court of Appeal expressed the same sentiment in a robbery case.
In the present case, five persons were involved in the robbery. The four robbers who entered the shop wore masks, caps and gloves. Two robbers were each armed with a knife, a lethal and very intimidating weapon. The robber at large, Tse, displayed a knife to PW1 and threatened him with it. PW1 was caused to suffer some injuries during the robbery. A hammer was also used. Despite as a matter of fact it was not used at a person, it was an intimidating tool and could be used to harm people.
Having considered submission of counsel, I do not find there are sufficient circumstances to distinguish the degree of culpability between the defendants. At the time of the offence, each of them knew they were to rob a watch shop and weapons were to be involved. Three of the defendants had actually entered the shop and actively involved in the robbery.
The role of D2 was that of a driver. Even if accepting for a moment that D2 had only realised the complete plan at a late stage, nevertheless he decided to continue his participation and lend his assistance. He did not enter the shop but he knew those who were to enter had weapons and his main task was to facilitate escape after the robbery.
It is not clear who actually caused the injury of PW1. However, I do not accept that in a case like this, actual use of the weapon was beyond reasonable contemplation of any of the robbers.
In all the circumstances, I am of the view that a starting point of 7½ years is appropriate for each of the defendants.
All the defendants pleaded guilty before a magistrate and therefore each is entitled to a one-third discount for this reason. Having considered the whole circumstances, I am of the view that this is the extent of discount each defendant is entitled to.
Despite counsel urged me to take into account that some money and properties were recovered, in my judgment this does not amount to a factor which justifies further discount.
So, defendants, please stand up. For the reasons I have mentioned, I sentence each of you to an immediate imprisonment term of 5 years.