HKSAR v. Chung Tik Hin and Others

DCCC 89/2022

[2023] HKDC 299

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 89 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Charges

1.D1 – 3 plead guilty to the following charges:

(i)  Robbery, against D1 – 3;

(ii)  Driver of carriage injuring person by furious driving[1], against D3;

(iii)  Possession of a dangerous drug, against D2; and

(iv)  Trafficking in a dangerous drug, against D3.

Facts

2.PW1, aged 39, was a housewife engaged in cash coupon trading activities though online auction platforms using WhatsApp. 

3.At night time on 8 April 2021, she received a WhatsApp message from a seller stating that he had $900,000 worth of cash coupons issued by a shop selling swallow’s nest and other dried products.  They agreed on $871,200 cash for the cash coupons.  They were to meet at around 2 – 3 pm on 16 April 2021 in Diamond Hill.  He would drive.

4.At around 2:57 pm on 16 April 2021, she carried $871,200 cash and arrived at Fung Tak Road, Diamond Hill, as appointed.  She called the seller. The seller said he was driving a black BMW.  A minute later, he drove up in a black BMW with licence plates “CK 1125” (“Car 1”).  D3 was the driver.  D2 was the front passenger.  The car stopped for her to get on.  She took the rear left seat and closed the door.  After this, a male in a cap and a facemask (“the Male”)  came and opened the rear right door.  He took the seat beside her.  D2 asked where the money was.  She in turn asked where the cash coupons were.  D2 asked to see the money first.  She opened a black plastic bag containing money for D2 to see.  D2 turned around and snatched the bag, then opened the rear left door.  The Male pushed her off the car through that door. She gripped that door to try to get back.  D3 drove Car 1 forward.  Car 1 dragged her along for about 3 metres, she lost her grip and tumbled over the ground.  She got up to chase Car 1 but lost sight of it outside Lung Poon Court, Diamond Hill.  She reported the case.  She was sent to the hospital for medical examination.  She suffered from abrasions over both elbows and back and tenderness over right neck and scalp region.  She was treated and discharged on the same day.   

5.Two drivers nearby, one with a car camera on, saw the incident.  CCTV in the vicinity revealed a black Volkswagen with registration mark UC 5612 (“Car 2”)  toured back and forth on Fung Tak Road for at least 5 times from 1:38 pm to 2:59 pm.

6.At around 5 pm the same day, D3 sold Car 1 to a car demolition dealer for $5,000.  The car was scrapped the following day.    

7.Police investigation indicated that Car 1’s licence plates “CK 1125” were necessarily forged as confirmed by the registered user of the car bearing registration mark CK 1125, who had never lost his licence plates.   

D1’s arrest

8.On 25 May 2021, the police found Car 2, with its vehicle registration document on board, at Chung On Street, Tsuen Wan.  D1 was at home, also at Chung On Street, with the key to Car 2.  Upon arrest and caution for conspiracy to rob, he said that he only acted as a lookout in the robbery for proceeds yet to be received.  He admitted in a subsequent video-recorded interview that at around 2 – 3 pm on 16 April 2021 he had driven Car 2 to Diamond Hill. 

D2’s arrest

9.Likewise, on 25 May 2021, the police arrested D2 for conspiracy to rob. D2 was at home.  After caution, he said that he robbed PW1 because he had debts, which he then repaid with his share of proceeds.

10.A transparent resealable plastic bag containing 1.85 grammes of cannabis in herbal form (“Exhibit 1”)  was found at his home.  After arrest and caution for possession of a dangerous drug, he said the cannabis was for his own use. 

11.In the subsequent video-recorded interview, he said, among others, of the robbery as follows:

12.A week before 16 April 2021, the Male (“TANG”), whom he had known before, called to talk about a plan for them to get PW1’s money by false cash coupons;

13.On 16 April 2021, he boarded Car 1 with TANG.  He (D2)  did not know the driver D3;

14.D3 gave him (D2)  a mobile phone to call a person, whose voice he recognized as LIU (“LIU”).  LIU instructed him to tell D1 to drive to the vicinity of Hollywood Plaza.  TANG would get off the car and acted as a lookout.  LIU would act as the lookout on a black Volkswagen and describe PW1’s whereabouts and attire to him (D2).  He (D2)  at the front passenger seat would snatch PW1’s money when PW1 was in the rear passenger seat;

15.When PW1 actually boarded the car, he counted her money.  After confirming it was $871,000, he gestured to D3.  TANG then kicked PW1 off the car.  Car 1 immediately fled the scene;

16.Car 1 arrived at Kwu Tung.  The money was handed over to un unknown person.  He received $87,000 as his share of proceeds.          

17.In the subsequent video-recorded interview, he said, among others, of the dangerous drug as follows:

(i)  Exhibit 1 was for his own use;

(ii)  It was worth $100;

(iii)  He bought it in Yuen Long a week ago.

D3’s arrest

18.Likewise, on 25 May 2021, the police arrested D3 for conspiracy to rob. D3 was just outside his home.  After caution, he said he had sold Car 1 to a person HUI (“HUI”). 

19.Piles of transparent resealable plastic bags, one electronic scale, and one transparent resealable plastic bag containing 9.58 grammes of a solid containing 8.74 grammes of cocaine (“Exhibit 2”)  were found at his home.  After arrest and caution for trafficking in a dangerous drug, he said the cocaine was for his own use.

20.He had a mobile phone and $12,470 cash on him. 

21.The estimated street value of Exhibit 2 was $16,247. 

22.In the subsequent video-recorded interviews, he said, among others, of the robbery as follows:

(i)  He was the drive of Car 1 when PW1 was robbed;

(ii)  On 15 April 2021, HUI gave him a pair of false licence plates “CK 1125” and instructed him to pick up 2 males the following day;

(iii)  At around 9 am on 16 April 2021, he bought an old model mobile phone and a SIM card. He told HUI of the mobile phone number;

(iv)  At around 11:45 am, he affixed the false licence plates to Car 1 and picked up D1 and a male;

(v)  He confirmed D2’s version in D2’s aforesaid video-recorded interview as to what happened before and at the robbery;

(vi)  After the robbery, he dropped off D2 and the male. D2 took the money, false licence plates and the old model mobile phone. D2 told him to scrap Car 1;

(vii)  He received $5,000 for scrapping Car 1. He spent all on food and entertainment;

(viii)  Later the same day, he met with HUI. HUI gave him $100,000. He spent nearly all, on food and gambling, the remainder $12,470 being seized by the police during the house search;

(ix)  He did not know that PW1 would fall off from Car 1 and he did not know that she was injured. He was looking at the front when driving. He heard that the door was shut after the car had moved further.

23.In the subsequent video-recorded interviews, he said, among others, of the dangerous drug as follows:

(i)  Exhibit 2 was for his own use. He bought it from someone in Yuen Long for $9,000 on 22 May 2021 as it was cheaper in bulk;

(ii)  He started to consume cocaine since January 2020, about 3 – 4 grammes per day;

(iii)  The electronic scale and those small transparent resealable plastic bags were given to him by the seller when he bought Exhibit 2. He would use the electronic scale for weight drugs but had no use for the small transparent resealable plastic bags;

(iv)  He worked as a transport worker and he purchased Exhibit 2 with his own savings.

Offences

24.At the material times:

(i)  D1 – D3, together with other unknown persons, robbed PW1 of $871,200 cash (Charge 1);

(ii)  D3 had the charge of Car 1, by wanton or furious driving, caused bodily harm to PW1 (Charge 2);

(iii)  D2 had in his possession Exhibit 1 (Charge 3); and

(iv)  D3 was in possession of Exhibit 2 for the purpose of unlawful trafficking (Charge 4).

Mitigation

25.D1 is 35 year of age.  He was diagnosed with cancer in 2010.  He is still receiving outpatient medical treatment every three months for it.  He feels weak and unwell very often.  Therefore, he cannot work on a steady job. As he was in need of money, he agreed to commit the present robbery at a friend’s suggestion.  That friend told him much detail.  He did not know the other defendants. 

26.He had 25 convictions from 14 court cases.  There were no convictions for robbery.  He had 3 convictions for common assault (sentenced in 2006 and 2013)  and 1 for assault occasioning actual bodily harm (sentenced in 2008).  He had 1 conviction for theft (sentenced in 2016 to 3 months suspended for 3 years in KT/3194/16, followed by 5 convictions for theft (sentenced in 2017 to 8 months, each concurrent).  He had 1 conviction for conspiracy to obtain property by deception (sentenced in 2017, to 2 years, also in DC/340/17).  The total sentence in DC340/17 was 2 years 4 months due to partly concurrent sentences.  His suspended sentence of 3 months in KT/3194/16 was activated in full, to be consecutive to those sentences, due to his commission of DC340/16. The prosecution informed me that he was released from prison on 20 July 2018. As it is not so near to the present robbery, I am not going to aggravate his sentence today.

27.D2 is 29 years of age.  Before arrest, he worked as a delivery worker. He has a daughter aged 14 months with his partner.  He had 15 convictions from 6 court cases, 4 of which resulted in imprisonment.  He had no records relating to robbery or drugs.  Mr. McCoy says D2 claims to have been instructed to commit robbery only 15 minutes before reaching PW1. 

28.D3 is 21 years of age.  He had records for assault occasioning actual bodily harm (sentenced to probation for 24 months on 23 December 2016)  and acting as member of triad society.  His probation is supposed to have ended on 22 December 2018, which was 2 years 3 months before the present robbery (of 8 April 2021).  I do not find it an aggravating factor. 

29.The sentencing guidelines for cocaine trafficking point to 2 – 5 years for up to 10 grammes (R v Lau Tak-ming [1990] 2 HKLR 370, applied in Attorney General v. Rojas [1994] 1 HKC 342).  D3 had 8.74 grammes on him.  The starting point shall be 4 years 6 months. 

30.Mr. Davies submits that half of the cocaine found on 25 May 2021 was for his own use, as evidenced by his responses to the police at the scene and in the video-recorded interviews, his positive results for cocaine in his urine test of 27 May 2021 when detained, and his own claim in his antecedents dated 19 December 2022 that he was a drug abuser. 

31.I do not find these aspects assist D3’s claim of own use.  First, his consistent responses at scene and in the video-recorded interviews were equivalent to a total denial of any part for trafficking.  If such responses, that the quantity of 8.74 grammes of cocaine was all for his own use, were to be true, he would have to explain to me why he had not told the police that half of it was for his own use.  However, Mr. Davies informs me that he is not going to give evidence.  Secondly, his antecedents dated 19 December 2022 that he was a drug abuser were given more than 1 year 6 months after he was found with the possession of cocaine on 25 May 2021.  Further, there he claimed to be a drug abuser, not a trafficker to any extent.  It does not tally with his claim, raised in mitigation today, that he trafficked in half or part of the cocaine.  Lastly and most importantly, he has pleaded guilty on the basis that, as stated in Charge 4’s Particulars of Offence and Paragraph 29(d)  of the Summary of Facts, a quantity of 8.74 grammes of cocaine, was for his purpose of unlawful trafficking.  His claim of own use, raised in mitigation today, for half or any part of the cocaine is contrary to this stance.  In conclusion I do not accept his claim of own use.     

32.On the sentence for robbery (Charge 1), each counsel refers to the case of HKSAR v Ting Chiu & Another [2003] 3 HKLRD 378.  There the two defendants together with two males robbed a middle-aged hiking couple near Lion Rock at midday.  No weapon was used or displayed.  One of them held onto the wife’s arm during the robbery.  She was not injured.  The property taken was $180 cash and a wristwatch.  The Court of Appeal adopted a starting point of 4 years.  

33.As pointed out by Mr. McCoy for D2, the robbery in our case can be regarded as more serious than Ting Chiu.  The robbery was premeditated with PW1 and the exact quantum of her property as the target.  It was predesigned in the specific task for each accomplice.  The property, $871,200 cash, was taken and unrecovered.  I accept that D1 – D3 were only pawns to carry out the robbery in the manner as predesigned by the masterminds, who were not arrested. 

34.Mr. McCoy also submits that the act of taking PW1’s property was akin to that seen in snatching cases.  I do not see how it can assist in the reduction of sentence because the whole course from the taking of property to PW1 being evicted from the car can be regarded as a continuous act of robbery. Alternatively, if viewed as an act of snatching, PW1 was forcibly evicted from Car 1, which then dragged her along as it moved forward.  It qualifies as an amply aggravated snatching.  There is no difference in culpability.    

Sentencing D1 – D3

35.D1 – D3 together with other unknown persons robbed PW1 (Charge 1).  D1’s role as a lookout driving Car 2 was as instrumental as D2 who took PW1’s money, or D3 who drove Car 1.  It was a premeditated robbery where they were used as pawns.  They had each agreed to commit the robbery and received instructions from unknown person(s)  as how to do it before PW1 emerged.  I take a starting point of 4 years and 6 months for each of them.  Given the one-third discount for the plea of guilty, the sentence is 3 years on Charge 1. 

36.D2 was in possession of a 1.85 grammes of cannabis in herbal form (Charge 3).  I take a starting point of 3 months.  Given the one-third discount for the plea of guilty, the sentence is 2 months on Charge 3 for D2.

37.D3’s act of furious driving had injured PW1 (Charge 2).  She received medical treatment in the hospital for multiple superficial injuries and was discharged the same day.  I take 6 months as the starting point.  Given the one-third discount for the plea of guilty, the sentence is 4 months on Charge 2 for D3.

38.D3 unlawfully trafficked in 8.74 grammes of cocaine (Charge 4).  I take a starting point of 4 years and 6 months.  Given the one-third discount for the plea of guilty, the sentence is 3 years on Charge 4 for D3. 

Each defendant’s sentence

39.D1 is charged with robbery (Charge 1).  His sentence is 3 years.

40.D2 is charged with robbery (Charge 1)  and possession of a dangerous drug (Charge 3).  His sentences are 3 years (Charge 1)  and 2 months (Charge 3)  respectively.  By totality principle, I order Charge 3 to be concurrent with Charge 1.  His total sentence is 3 years. 

41.D3 is charged with robbery (Charge 1), furious driving causing injury (Charge 2), and trafficking in a dangerous drug (Charge 4).  His sentences are 3 years, 4 months, and 3 years respectively. By totality principle, I order Charges 1 and 2 to be concurrent, with 4 months of Charge 4 to be consecutive to them.  His total sentence is 3 years 4 months.

[1] As per Section 33 of Offences Against the Persons Ordinance, Cap. 212, liable to imprisonment for 2 years