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 previously and had its number plates swapped. They 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 was brandishing a knife. Others had hammers or an axe, which were used to break into the display cabinets. Photograph 4 of the photographs shows one of the robbers with the axe raised high above his head. That may be because the glass cabinets were reinforced and it was not easy to break them open. Considerable force was required. This can be seen in Photographs 9 to 11 of Book 1.
Seven gold rings and 71 bracelets were stolen in considerable haste. The photographs show items of gold jewellery left abandoned on the floor. All five robbers then escaped in the vehicle they had arrived in. The whole incident was over in one to two minutes. The value of the goods actually stolen was $605,091.
Later that day and by chance, a witness saw the vehicle, now without number plates, parked some seven kilometres away. A knife, axe and hammer, masks and gloves plus discarded clothing were recovered which led in part to the arrest which took place over a period of months.
I am going to refer to the defendants by their original numbering. So the 4th defendant, Gurung Sanjan, is Nepalese and is now 27 years of age but was 25 at the time of this offending. Despite being educated here in Hong Kong, he told the police that he had never worked here and was unemployed at the time of his arrest. But Mr Whitehouse tells the court that the defendant did, in fact, have a number of casual jobs.
D4 is married and lives with his family and wife. This offending resulted in him missing the birth of his daughter, which he deeply regrets. It has also resulted in the breakdown of his marriage and his baby daughter now being looked after by his mother. The 4th defendant has a criminal record but they are for minor and unrelated matters.
I have read the letter which the defendant submitted to the court which indicates he is sorry for what he has done and feels remorse for how his actions have impacted upon his family. It shows no remorse for the loss to the jewellery shop owner or concern about the effect he had upon the members of staff of that shop when the five robbers came into the shop with a knife, hammers and an axe. He is far more concerned with how his offending impacted his own life and family than how it may have impacted the shop owner or members of staff.
The 5th defendant, Abella Mark Jordan Gaspar, in his letter to the court did recognise the effect his actions had upon the shop owner and members of staff. Unlike the other defendants, who are Nepalese, the 5th defendant is Filipino but born and educated in Hong Kong up to Secondary 2. The defendant is 33 years of age and was 31 at the time of the offending, by far the eldest of the group who have been arrested. He lives with his partner, daughter and mother in Hong Kong.
The defendant has a criminal record, which dates back to 2005, but were for minor matters. He then went to the Philippines for his education. When he returned, he appears to have fallen back into his old ways because in 2016, he was prosecuted for possession of dangerous drugs and received a suspended sentence. Then, in 2018, he received DATC for shoplifting, presumably brought about because of his drug habit. And in 2019, he was fined for gambling. Petty offending is still offending and it does not show any particular concerns as he now suggests for his family, who are the ones to suffer when he goes to prison.
The defendant’s daughter had just been born when he committed this offence and he has missed out on her early years. The court does note that upon arrest, the defendant was cooperative and admitted holding the knife and shouting at staff members as well as taking some rings from a cabinet and putting them into the bag, which was used to hold the stolen goods. He, of all of them, actually admitted receiving $10,000 as a reward. No doubt that was what everyone else was supposed to have received.
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 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 within that authority, it was indicated by the court in Mo Kwong Sang 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.
On the other hand, there are other cases involving robbery of jewellery shops or banks where far greater sentences have been passed. In Attorney General v Man Yui To, CAAR 6/1984, for example, the Court of Appeal felt a sentence of between 12 and 15 years was appropriate where, in a robbery, a gun and knives were used against staff. This was affirmed in HKSAR v Pau Lai Sing, CACC 282/2009. The critical feature of those cases, however, was the use of a firearm. That was not the case here. Sentencing will very much turn upon the facts of each case.
This robbery was carefully planned. A car was stolen some days in advance and the number plates were switched. Someone purchased gloves, masks and hats for the robbers and someone provided the tools and the knife. It was a robbery of what Mr Percy described as a soft target, a jewellery shop, which was situated on the ground floor of a building and particularly susceptible to a robbery such as this. The robbers were in possession of a knife, hammers and an axe. There was a significant unrecoverable loss. Those are aggravating features, which attract an uplift in sentence where they are attributable to a defendant as they are here.
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 not intended to be 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 and the staff was shouted at.
Where a defendant had a previous record, they were not of a similar kind, usually minor and gave no indication of a predisposition to violence. This was a very quick robbery, only one to two minutes, and therefore the traumatising effect upon the staff was limited.
The starting point I adopt for sentence is one of 5 years. This was a well-organised and pre-planned robbery for which the defendants were recruited. That is an aggravating feature for which I intend to enhance the starting point by 1 year.
The shop was a jewellery shop on the ground floor and vulnerable to attack. Whilst there were only staff present, both the very large knife and the axe would have terrified them. They were not to know they would not be used upon them. They were not to know this would all be over in one to two minutes. There were a considerable number of robbers for one small shop, all dressed in black with masks and caps. That, too, would have been particularly frightening and intimidating. There was considerable violence in the smashing of the display cabinets. For those aggravating features, I intend to enhance the starting point by a further year to 7 years.
I can see no reason to distinguish between D4 and D5, who played a very similar role in this robbery. The defendants both pleaded guilty at the first opportunity and are entitled to a full one-third discount from that sentence.
They will both go to prison for 4 years and 8 months.