HKSAR v. Gurung Ashish and Another

HCCC 215/2021

[2022] HKCFI 3514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 215 OF 2021

________________________

________________________

________________________

Transcript of the Audio Recording
of the Sentence in the above Case

________________________

COURT: The defendant pleaded guilty to one count of robbery, contrary to section 10(1)  and (2)  of the Theft Ordinance, Cap 210. He originally pleaded not guilty at the Magistrates’ Court on 25 October 2021, but very soon thereafter indicated that he wished to change that to a guilty plea such that this court was not in any way inconvenienced, and he was listed for plea and sentence in the normal way.

(Discussion re volume)

As a result of listing and because there were other defendants involved in the same offending, he ultimately was only able to formally plead guilty on 16 August 2022, even though the indication of plea was noted by this court on 22 December 2021.

The defendant was one of two lookouts for a robbery, which took place on 3 March 2020. At the time, he was just 16 years of age. He had been recruited just two days before by a very close childhood friend to help his friend act as a lookout for a robbery. He did not know any of the other participants nor did he know the details of what was to happen, but he did know there was to be a robbery. That is his culpability at its highest.

On 3 March 2020, he and the 2^nd defendant arrived at the scene of the crime early. At this stage, he would have been aware that a jewellery shop was to be the target. They went for breakfast before eventually finding a position in a tenement block opposite the shop to lookout from. It was, however, the 2^nd defendant who communicated with those who organised the robbery. It was the 2^nd defendant who was in possession of a mobile phone dedicated for that purpose. It was the 2^nd defendant who called to let them know that the area was clear of people and police, and the 2^nd defendant who eventually told the organisers that the gang of five men who had robbed the shop had left.

From their vantage point, the 1^st defendant did not see the hammer, axe or knife used in the robbery. He would not have known nor could he have known that there were to be weapons. He did not know how many people were to be involved. He would only have known that when the getaway car drew up outside of the location and the five men alighted.

The robbery was completed in a matter of one to two minutes. No sooner had the gang entered than they were running away to be picked up by the car. For the part he played, the defendant was treated to a t-shirt by the 2^nd defendant. He knew no more until he was arrested just a month later on 7 April 2021. He has been on remand in Pik Uk since that date.

At 11 am on the morning of 3 March 2020, at a time when only members of staff were present, five men were captured on CCTV leaving a vehicle, registration number JN9585. That vehicle had been stolen a week earlier and its plates changed. The gang of five entered the Tai Sun Jewellery and Gold Shop, which is located on the Ground Floor of Fu Ho Building, 3-7 Kau Yuk Road, Yuen Long.

They were all wearing masks and caps. One of them took out a knife to intimidate the staff. Others had a hammer or an axe, which were to be used to break the display cabinets. They snatched the jewellery hurriedly and they stole seven gold rings and 71 bracelets in all. The value of the goods stolen was $605,091. All five then escaped in the vehicle they had arrived in. The whole incident was over in one to two minutes.

For a robbery such as this, the starting point for sentence after trial is accepted to be HKSAR v Mo Kwong Sang(Mo Kwong Sang v R?) [1981] HKLR 610, in which Roberts CJ stated that for an ordinary armed robbery where the accused was carrying a knife or other dangerous weapon, excluding a firearm, which he displayed to his victim, the sentence should be one of 5 years’ imprisonment. As a further guide, the court in Mo Kwong Sang indicated that where, for example, two men had broken into a private domestic premises at night and threatened a girl who was on her own with a knife, tied her up and ransacked her flat, the appropriate sentence was one of 7 to 8 years.

This robbery was carefully planned. A car was stolen some days in advance and the number plates switched. Someone purchased gloves, masks and hats for the robbers and provided the tools and knife. It was a robbery of what Mr Percy would describe as a soft target, a jewellery shop situated on the ground floor of a building and particularly susceptible to a robbery such as this. There was a significant unrecoverable loss. Those are aggravating features, which attract an uplift in sentence where they are attributable to the participants.

The countervailing submissions are that this was a daytime commercial robbery. There were very few people around and no customers present in the shop. Whilst there was a knife, hammer and axe, the hammer and axe were only ever used to smash the cabinets and were never used to intimidate or threaten the staff. No one was directly threatened even with the knife. No one was injured. At its highest, the knife might have been brandished.

Where a defendant had a previous record, they were not of a similar kind nor were they likely to be violent. This was a very quick robbery, lasting only one to two minutes, and therefore the traumatising effect upon the staff was limited.

There are other cases where there has been a robbery in a jewellery shop where far greater sentences have been passed. In Attorney General v Man Yui To, CAAR 6/1984, the Court of Appeal felt a sentence of 12 to 15 years was suitable for a robbery where a gun and knives were used against staff. This was affirmed in HKSAR v Pau Lai Sing, CACC 282/2009, although the critical feature of these cases, however, was the use of firearms. That was not the case here.

The defendant was 16 years of age at the time of this offending and had not been in trouble before. Although the fact that someone is of good character is rarely mitigation when they have been involved in something as serious as an armed robbery. He did agree to act as a lookout for a robbery. However, he was unaware of who was carrying out the robbery or how that was to be done. He had no idea that a knife was to be used or that hammers and axes would be carried to smash through the cabinets. He had no means of knowing or foreseeing this as a possibility.

Indeed, it appears that the actual participants did not know the weapons they would be asked to carry until immediately before the offence. Had he been one of this friendship group of Nepalis, who had agreed to carry out this robbery for others, then it is possible that knowledge might be attributed to him or at the very least he should have foreseen that weapons would be used, but that cannot be said to be the case here. There is no way, given his lack of connection to anyone but the 2^nd defendant, that he would have known what was to happen. D2 himself appears to have known none of the details.

In HKSAR v Chan Wan Cheung, CACC 439/2006, in a case where the starting point for sentence was 15 years, the Court of Appeal commented that where a sentencing judge believed that the defendants did not know a firearm would be used in a robbery, their sentences would be significantly reduced by probably more than half. I doubt that comment was intended as a guideline in all cases, but I take it to infer that in circumstances where the court is satisfied a participant did not know and had no way of knowing weapons would be used, there is some justification for that defendant receiving a lesser sentence than others who did know or who used such weapons.

D1 is now 18 years of age. He has been remanded for some 30 months in Pik Uk, coming up to 31. During that period, he has been under the supervision of a social worker who reports that the defendant has expressed a sincerely held regret about the part he played and the effect that it has had upon his family and community. He has used his time on remand to learn new skills to enable him to be productive when he is released.

I have a letter before me from the defendant himself, which expresses that regret for his foolishness in agreeing to help the second defendant, and his hope that he can make it up to his family and society when he is released.

I adopt a starting point for sentence of 5 years as laid down in Mo Kwong Sang. No part of the aggravating features of this case can be laid at the door of the 16 year old who agreed to be a lookout that day. He was not involved in the planning, did not know the robbers or the intended location and could not have foreseen the use of weapons. There is no evidence of what he actually did as a lookout given that it was the 2^nd defendant who communicated with whomever was controlling operations. I do not believe it would be just to enhance that starting point for any of the aggravating features in this case.

I also note that in Mo Kwong Sang at page 611(h), Roberts CJ also stated that the starting point could be the subject of adjustment to reflect record, age or other personal circumstances.

For his role in this matter, I consider a sentence of 4 years to be appropriate. That is 48 months. He should receive a discount of one-third of that sentence for what I consider to be his early plea, which means he should serve a sentence of imprisonment of 32 months.

In the normal course of events, he would also have received a reduction of a further third for good behaviour. If he had misbehaved in Pik Uk, no doubt the social worker would have commented upon it. If that were the case, he would expect to serve a total of just over 20 months in custody. COVID has meant that matters have taken longer to come to trial than would ordinarily be the case.

In this case, that was exacerbated by the outstanding not guilty plea of the 2^nd defendant. If I were to order a sentence of imprisonment of 32 months now, the prison rules require that this defendant would serve a further month in any event, which would mean that he would actually serve a sentence far in excess of the amount of time other inmates would have served if this matter had come on promptly as a plea.

Accordingly, I sentence the 1^st defendant to time served and order his immediate release.

(Proceedings from 9.51 am to 9.54 am not required)

The defendant pleaded guilty to one count of robbery, contrary to section 10(1)  and (2)  of the Theft Ordinance, Cap 210. He originally pleaded not guilty at the Magistrates’ Court on 25 October 2021, but very soon thereafter indicated that he wished to change that to a guilty plea and then, under the influence of others in prison, he changed his mind once more. As a result, he was listed for trial. It was not until the first case management hearing on 20 June 2022 that counsel was able to confirm that he wished to plead guilty. As a result of listing and because there were other defendants all involved in the same offending, he ultimately was only able to plead guilty on 16 August 2022 at which time the trial dates were able to be vacated.

The defendant was one of two lookouts for a robbery which took place on 3 March 2020. At the time, he was just 16 years of age. He had been recruited three days earlier by someone he knew from his local Nepali community. That person had asked him to be a lookout for a robbery and suggested he find another person to help him. As a result, he recruited a very close childhood friend, the 1^st defendant.

Neither the 1^st defendant nor the 2^nd defendant know any of the participants in the robbery itself. The 2^nd defendant’s only connection was to someone called Ah Sam. He is not believed to be a participant in the robbery. D2 did not know the details at that stage of what was to happen but he did know there was to be a robbery. He had been given a Nokia mobile phone to communicate with whom I presume was Ah Sam.

On 3 March 2020, he and D1 arrived at the scene of the crime early. They went for breakfast before eventually finding a position in a tenement block opposite the shop to lookout from. It was D2 who communicated with those who organised the robbery. It was D2 who was in possession of a mobile phone dedicated for that purpose and it was D2 who called to let them know that the area was clear of people and police. It was D2 who eventually told the organisers that the gang of five men, who robbed the shop, had left.

From their vantage point, D2 did see the men entering the shop and he saw an axe. At that point, he would have known that they were carrying weapons. He would have known the number of people involved at the point that they got out of the getaway car and the five men alighted. It might have been the case that he could have changed his mind and withdrawn from this enterprise having seen the axe. But instead, after the robbery was completed in a matter of one to two minutes, he continued to assist when he rang to say the robbers had left, no doubt so that the car was ready to pick them up. He therefore played a more significant role than that of the 1^st defendant.

At 11 am on the morning of 3 March 2020, at a time when only members of staff were present, five men were captured on CCTV leaving a vehicle, registration number JN9585. That vehicle had been stolen a week earlier and the plates changed. The gang of five entered the Tai Sun Jewellery and Gold Shop, which is located on the Ground Floor of the Fu Ho Building, 3-7 Kau Yuk Road, Yuen Long.

They were all wearing masks and caps. One of them took out a knife to intimidate the staff. Others had a hammer or an axe, which were to be used to break into the display cabinets. They snatched the jewellery hurriedly and they stole seven gold rings and 71 bracelets in all. The value of the goods stolen was $605,091. All five then escaped in the vehicle they had arrived in. The whole incident was over in one to two minutes.

For a robbery such as this, the starting point for sentence after trial is accepted to be HKSAR v Mo Kwong Sang(Mo Kwong Sang v R?) [1981] HKLR 610, in which Roberts CJ stated that for an ordinary armed robbery where the accused was carrying a knife or other dangerous weapon, excluding a firearm, which he displayed to his victim, the sentence should be one of 5 years’ imprisonment. The other aggravating features mentioned in the Mo Kwong Sang case are not present in this case, save for the fact that this robbery was carried out by not one but five men. Those features, of course, were not intended to be exhaustive. As a further guide, the court in Mo Kwong Sang indicated that where two men had broken into a private domestic premises at night and threatened a girl who was on her own with a knife, tied her up and ransacked her flat, the appropriate sentence was one of 7 to 8 years.

This robbery was carefully planned. A car was stolen some days in advance and the number plates switched. Someone purchased gloves, masks and hats for the robbers and provided the tools and knife. It was a robbery of what Mr Percy has described as a soft target, a jewellery shop situated on the ground floor of a building and particularly susceptible to a robbery such as this. There was a significant unrecoverable loss. Those are aggravating features which attract an uplift in sentence where they are attributable to the particular participants.

The countervailing submissions by counsel are that this was a daytime commercial robbery. There were very few people around and no customers present in the shop. Whilst there was a knife, hammer and axe, the hammer and axe were only ever used to smash the cabinets and they suggest that the knife was never used to intimidate or threaten. No one was directly threatened even with the knife. No one was injured. At its highest, the knife might have been brandished.

Where a defendant had a previous record, they were not of a similar kind nor were they likely to be violent. This was a very quick robbery, lasting only one to two minutes, and therefore the traumatising effect upon the staff was limited.

On the other hand, I have noted that there are other cases of robbery in a jewellery shop or a bank where far greater sentences have been passed. In Attorney General v Man Yui To, CAAR 6/1984, the Court of Appeal felt a sentence of between 12 and 15 years was suitable for a robbery where a gun and knives were used against staff. This was affirmed in HKSAR v Pau Lai Sing, CACC 282/2009. The critical feature, of course, of those cases was the use of firearms. That was not the case here.

The defendant was 16 years of age at the time of this offending. He had been in trouble before, which was for the possession of dangerous drugs when he was just 15. COVID had interrupted his schooling. He had little to do and so he associated more and more within his local Nepali community. They were clearly a bad influence upon him. He had previously refused to be involved in unlawful activities, but on this occasion, he succumbed. It was someone from the community who recruited him to participate as a lookout for a robbery to make some money. However, he was unaware of who was carrying out the robbery or how that was to be done, and I am told by Dr Mohamed that he does not know the 3^rd, 4^th or 5^th defendants as I described them under HCCC 216/2021.

He did not know the details of the robbery before the robbery. He would not therefore have known that a knife was to be used or that hammers or an axe would be carried to smash through the cabinets, but he did see someone carrying an axe when they alighted from the car. And at that stage, he would have had a good idea of what was to happen and he had a chance to distance himself from the enterprise he had joined, but he did not do so and he continued to play his part. Luckily, the axe was only used as a tool to smash the display cabinets and no one was directly threatened or injured during the robbery, but he did not know that.

I adopt a starting point for sentence of 5 years as laid down in Mo Kwong Sang. D2 was a party to this joint enterprise, which required his role as a lookout and his confirmation that there were no police present, but he played no part in the planning and he did not know about the axe until the moment the robbery took place. As he did not know the other gang members, he could not have foreseen earlier than that they would have used weapons.

He was very young. They would not have been his normal associates. I am not therefore going to attribute to this young man the aggravating features of this case, which may ordinarily be visited upon an adult lookout who knew the robbers. In doing so, I take into consideration that in Mo Kwong Sang at page 611(h), Roberts CJ also stated that the starting point could be the subject of adjustment to reflect record, age or personal circumstances. I do not intend to reduce the starting point in this case in respect of D2, but I do not intend to enhance it either as a result of the other matters that have been brought to my attention. For his role in this matter, I consider a sentence of 5 years to be appropriate.

The defendant did not indicate his plea at the earliest possible date and it was only on 20 June this year that he finally indicated his wish to plead guilty. He can therefore only receive a discount of 25 per cent from that sentence.

He must go to prison for 3 years and 9 months.