The defendants, D1 and D2, are charged with one charge of robbery. The particulars of offence say that they on 10 July 2019, outside 7-Eleven convenience store in Kwong Wa Street, Mong Kok, together with other persons unknown, robbed Pang Wai-tak, PW1, and Labtha Weechai Yuttasil, PW2, of one rucksack, one wallet, one 18K gold ‘Apple’ iPhone, three bank cards with three bank security devices, one passport, cash of 7,000 US currency and cash of 10,500 Hong Kong currency. They pleaded guilty to the charge and are committed to this court for sentence.
Before me, they confirmed their plea and their agreement to the Summary of Facts.
Summary of Facts
Briefly stated, PW2 is a Thai national and PW1 is his friend in Hong Kong. On 6 July 2019, PW2 posted an advertisement to sell his ‘Patek Philippe’ watch. Two days later, a male claiming to be ‘Zhang Jinrui’ contacted him and offered to purchase the watch at HK$790,000. PW2 then asked PW1 to help contacting the purchaser.
On 10 July 2019, PW2 flew to Hong Kong to meet the purchaser. Later that morning, he and PW1 met D1 near the public toilet at Sai Yee Street, Mong Kok, thinking that the latter was the purchaser. D1 led PW1 and PW2 to three watch shops situated at Paradise Shopping Square, namely, ‘K & L Watch’, ‘London Watch’ and ‘WeWatch’ for purported authentication of PW2’s watch. After that, he led PW1 and PW2 to a nearby branch of Bank of China, saying that they were to meet his family for completion of the transaction.
Subsequently D1 made an excuse by saying that he wanted to buy a drink and entered the 7-Eleven shop mentioned in the charge. After D1 had gone, three masked non-ethnic Chinese males suddenly approached PW1 and PW2. Two of the males successfully snatched from behind PW1’s rucksack (which contained the other properties listed in the charge) and left, whilst the third male chopped PW2’s head with a beef knife. PW2 kicked the assailant back and ran immediately away. In the event, PW2 was able to keep his watch. The matter was reported to the police.
PW2 was admitted to hospital and discharged on 11 July 2019. He was found to have sustained a five-centimetre deep laceration over the left side of his scalp with mild oozing. He received suture for his wound.
Now the act of D1 and the assailants were captured by CCTV in the vicinity. After his arrest, D1 said under caution that he was recruited by a person called ‘Cheung Jai’ for a reward of HK$10,000. He said that he was told to accompany someone to do ‘watch authentication’. D1 then contacted the seller of the watch who informed him that he, the seller, would come to Hong Kong on the following day. D1 then contacted the seller.
On the day of the incident, after D1 had met the sellers, PW1 and PW2, he received a call from a male who gave him the direction to the shopping mall for ‘watch authentication’. After the three of them had been to the second shop, D1 got to know that the watch was a ‘Patek Philippe’ and was worth around HK$550,000. At that stage, D1 received a call from a male who asked him to ‘delay the time’, as there was a traffic jam. When D1 was asked to leave the shopping mall with the sellers, he took PW1 and PW2 to a nearby branch of the Bank of China purportedly for completing the transaction.
When D1 was near the aforesaid public toilet, he saw three non-ethnic Chinese males. It was then that he received a call from the male again who informed him for the first time that the three non-ethnic Chinese males would be responsible for snatching the seller’s watch and D1 was requested to check the seller’s location. That, according to D1, was the first time that he learned about the plan to rob. Nevertheless, D1 agreed to participate in the plan.
When D1 was in the 7-Eleven convenience shop stated in the charge, he informed that gang member of his location by phone. Shortly afterwards, he saw PW1 and PW2 being robbed. D1 provided to the police the telephone number of one of the gang member.
By using the telephone number provided by D1, the police arrested D2.
Under caution in video-recorded interviews, D2 said that he was asked in the evening of 9 July 2019 by a casual friend, ‘Ming Jai’, to drive a few persons from Jordan to Mong Kok for which task he was promised HK$500. On the following morning, D2 collected the vehicle as instructed and he took a photo of that vehicle by his mobile phone. Later in the afternoon, he used the vehicle to pick up a person called ‘Sam’ and two other non-ethnic Chinese in Jordan and drove them to Mong Kok as told. After dropping the three people, he drove the vehicle back to To Kwa Wan. He said he subsequently learned about the robbery from the news.
The call records of D1 and D2 were examined by the police. It was found that there were 21 phone calls between the mobile phones of the two of them, both before and after the robbery. It was also found that D1 had used his phones to call PW1 once the day before the robbery.
Moreover, in one of D2’s mobile phones, the police found a photo of two packets of masks, one photo of the aforesaid vehicle, two photos of PW2, one photo of the ‘Patek Philippe’ watch with certificate which resemble PW2’s watch, one photo of Sai Yee Street, one photo of Battery Street and one photo of Winslow Street. There was also a text message in D2’s mobile phone saying “you throw your SIM” with screen capture of a Google translation of the sentence saying “we left weapon there is fingerprint so don’t use same SIM again”.
It is now admitted that at the material times D1 and D2, together with other persons unknown committed robbery against PW1 and PW2.
Antecedents statement of D1
D1 is now aged 22. He was born in Hong Kong and received education here up to Form 3. He was unemployed at the time of the offence. He lives with his mother in a public housing estate in Aberdeen.
D2
D2 is now aged 32. He was born in Hong Kong and received education here up to Form 4. He worked as a construction site worker and lived with his parents in a public housing estate in Wong Tai Sin. He has four court appearances between August 2007 and October 2019 with a total of eight convictions, much of it are similar to the present charge.
Sentence
Although PW2’s head was chopped by an assailant with a beef knife, by providence he did not suffer any serious injuries. I have given serious consideration as to whether this case should be categorised as a head-bashing robbery as described in Secretary for Justice v Ma Ping Wah for sentencing purpose. However, I note that there is no clear or sufficient evidence to show that either D1 or D2 had prior knowledge that weapons will be used by any of the assailants in the robbery or that either D1 or D2 was a party to the plan of hitting PW2’s head. There was also nothing in the Summary of Facts to show that there was a joint plan to commit the robbery by chopping or hitting PW2’s head.
In other words, although a knife had in fact been used in the robbery, neither D1 nor D2 knew or foresaw the use of the knife. Therefore it would not be right for me to sentence either of them as the party to an armed robbery. I understand that Ms Tam for the prosecution does not suggest the otherwise.
Even though I am going to sentence D1 and D2 on the basis that they were parties to just an unarmed robbery, the sentence for which would normally be lower than that of an armed robbery as to this see Mo Kwong Sang v R and HKSAR v Ting Chiu.
There were a number of aggravating factors which make the robbery under consideration a particularly serious one:
(1) There was a carefully planned robbery.
(2) A foreigner was lured to Hong Kong specifically for him to be robbed here and this tarnishes the reputation of Hong Kong as a relatively safe international city.
(3) There were at least five people involved in the execution of the robbery.
(4) Excessive violence was used in broad daylight in a crowded area in Hong Kong to facilitate the robbery and the fact that PW2 had sustained injuries. Excessive violence was used.
(5) The not insignificant loss suffered by PW1.
That said, I accept that D1 and D2 may not have known the full scope and every details of the robbery beforehand and that the injuries of PW2 were not caused by either of them.
I do not think that there is any meaningful distinction between D1 and D2 as regard their respective culpability. Both of them were parties to the same joint enterprise with others who robbed. Taking everything in consideration, on balance, I adopt 5 years’ imprisonment as the starting point of their respective sentence. Compared with HKSAR v Wong Ching Chiu.
I trust that Mr Sher for D1 and Mr Li for D2 have said all that can be said on behalf of the defendants in mitigation. I also have regard to what was said in the mitigation letters produced on behalf of D2.
However, apart from their timely plea I can see no factors which may reduce their sentence. After giving them the customary one-third discount for plea, D1 and D2 is each sentenced to 40 months’ imprisonment.