HKSAR v. Tai Tin Ho, Zafar and Another

HCCC 334/2020

[2023] HKCFI 1635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 334 OF 2020

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BETWEEN

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REASONS FOR SENTENCE

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1.On 18 February 2020, PW1 came to Hong Kong from Taiwan to visit. She was 21 years old and a Russian citizen who had been living in Cambodia and travelling around Asia. She stayed at the Walden Hotel in Hennessy Road. At about 9:30 in the evening of 22 February 2020, someone rang the bell of her hotel room. She could not see who it was through the spy hole on her bedroom door as the man had on a cap and his face was pointing towards the floor. Nevertheless, and in the belief that Hong Kong was a safe place, she opened the door. The First Defendant (“D1”), wearing dark clothing, a cap and a mask, walked into the room followed closely by the Second Defendant (“D2”)  who pushed the door open with such vigour that it appears to have hit PW1 as she told the Court that she was rendered unconscious when the robbers entered. When she came to, D1 was squatting over her. She screamed. He put his hand over her mouth to stop her from screaming and told her to shut up. From her position on the floor, she could see D2, who was standing just behind D1. He took a 60 cm long machete type knife out of a bag and a pistol, both of which she could see. At this point their victim told the Court that she was scared and so she followed the directions of the robbers. They moved her to sit on the bed. They asked for her money. She handed over HKD 40,000 to them. They wanted more. D2 cut open a suitcase with the knife but found nothing. In order to stop them destroying another suitcase, PW1 opened her own suitcase and gave them a further USD 6,000. There was no more. They told her to remain in the room and stay quiet and then they left. PW1 told the Court that it felt as if the incident had lasted 15-20 minutes but in fact it was all over in just over 12 minutes. She said she felt shocked and frightened. She did not know what to do initially but after advice, she went to the police the next day.

2.That delay in reporting the incident and the intervening cleaning of the room by hotel staff made investigation of this offence more difficult for the police. They did not seek to recover finger print or DNA evidence and the cut open suitcase had already been removed.  Instead, they methodically followed the CCTV evidence. The robbers were observed entering the hotel, going straight up to the 18^th floor in the lift and walking to Room 1801. They were seen to leave the room calmly, to travel down in the lift without agitation and to leave through the hotel lobby. None of that CCTV evidence provided a full view of the defendant’s faces. CCTV from the outside of the hotel revealed the taxi which had delivered them to the hotel. They tracked down the taxi driver who had dropped the defendants off at the hotel and discovered where he had picked them up. They recovered other CCTV from the vicinity of the hotel and the area between the pick-up and drop off points with local MTR stations.  Later, they were able to trace the defendants by means of their Octopus card transactions. Even so, the CCTV evidence did not provide a clear view of the defendant’s faces although they were consistent as to build and dress. Eventually the prosecution recovered CCTV footage which did show the face of D1 both in the vicinity of the crime on the night in question and on other occasions so as to properly link him to his Octopus transactions. They were less successful with D2 who was linked to D1 by reason of his presence with D1 and his mobile phone and immigration records, dress and build.

3.The defendants were found guilty after trial of one count of robbery contrary to s10(1)  of the Theft Ordinance Cap 210.

4.The First Defendant is 31 years of age. He was therefore 29 at the time of this offending. He is a married man with a young daughter and stepson. He lives in Tin Shui Wai and did so at the material time with his heavily pregnant wife. He was educated up to Secondary 2 and then gained some further qualifications to enable him to work in construction. He describes himself in his letter to the Court as self-employed and earning HKD20-30,000 per month. The First Defendant does not accept the verdict of the jury and consequently has shown no remorse. Mr Bullett’s mitigation was necessarily limited by that attitude and was reduced to pointing out that the pistol was seen only momentarily by the victim and that she had eventually agreed that the first robber (said to be his client)  had “probably” said he wouldn’t hurt her when he had a hand over her mouth telling her not to scream.

5.Unfortunately the First Defendant has a significant record which includes matters of Robbery. At 14 years of age he was before the courts for Theft and then for possession of an offensive weapon for which he received a Rehabilitation Order (“RO”). The recidivism rate from RO’s is notoriously low but the defendant didn’t fall into that category because he was once again before the Courts in 2010, for Conspiracy to Rob for which, at the age of 17, he received a sentence of 5 years’ imprisonment. Later that same year, and presumably for a matter which occurred sometime earlier, for a matter of AOABH he received a further short sentence. In 2013, and presumably shortly after his release from prison, he was given a 1 month suspended sentence for resisting a police officer but that sentence was breached when he committed a further offence of Conspiracy to Rob. He was dealt for that offence in 2016 and received a sentence of imprisonment of 32 months. There was then a short period of time without D1 coming before the Courts. The defendant says this was because he met and married his wife and she has been a good influence upon him. That influence did not last, as this offending took place in February 2022 and clearly follows his previous offending pattern of dishonesty and violence.  If that were not enough, he committed further offences whilst on bail for this offence. His claims of rehabilitation do not ring true.

6.The Second Defendant is 28 years of age and would have been 25 at the time of this offence. He has a girlfriend who is with child. He lives with his family, including his mother, and he is the sole breadwinner. His mother and girlfriend have been in court throughout the proceedings. He was previously working in a Pharmacy earning $20,000 per month. He had been in trouble in 2011, at the age of 16, when for possession and then trafficking in dangerous drugs, he initially received a Rehabilitation Centre Order which was amended to a Training Centre Order by the District Court. He has not been in trouble again until this offending in February 2022. It therefore appears wholly out of character but it is clear from the evidence that he is a close associate of D1. 

7.In HKSAR v Yang Xingyun CACC 155/2016, the appellant had been sentenced by Zervos J ( as he then was)  to 9 years 8 months imprisonment for the robbery of a female tourist in the Hotel Nina. In that instance she had been assaulted and tied up by her assailant over several hours and had a sedative forcefully poured into her mouth. She sustained physical and psychological harm as a result. The learned judge had noted the robbery was “well planned and ruthlessly executed”. He had noted the starting point for sentence was that of 5 years under R v Mo Kwong-sang [1981] HKLR 610, for an armed robbery where the defendant carried a knife or other dangerous weapon.  He found an enhanced sentence of 6 years was appropriate where there was an invasion of private premises and 7 years if there was physical violence. The ultimate sentence was 9 years 10 months’ imprisonment.

8.The Court of Appeal in HKSAR v Yang Xingyun supra stated:

“ It should be remembered that this Court has never laid down for the offence of robbery sentence tariffs of the kind employed for drug trafficking offences; although it has, from time to time, given guidance on how particular forms of robbery should be sentenced. Rather, the Court has provided guidelines as to minimum sentences that should usually be imposed in ordinary cases which do not involve the presence of aggravating features, and suggested how various aggravating features might impact on such a sentence. It should not be assumed that the list of aggravating features is closed[1].”

And later

“ It can in such circumstances be somewhat artificial to identify a specific base starting point, which is then increased by defined or prescribed increments: indeed, the danger is that by adopting too mathematical an approach by the addition of a specific increase for each particular aggravating feature, particularly where there is an element of overlap between those factors, the sentence becomes unrealistic and excessive. [2]”

9.Both the Court of Appeal and the Court below also referred to the judgment of HKSAR v Zhang Wei [2014] 6 HKC 599 in which the appellant received a sentence of 8 years’ imprisonment after plea before Bokhary J for the robbery of $790 and a mobile phone from Miss X, a prostitute at her work premises. The appellant had threatened to inject Miss X with blood tainted with AIDS. In the course of the struggle she was jabbed with the syringe. That Court referred to the leading case of HKSAR v Mo Kwong-sang supra, per Roberts CJ who inter alia stated a sentence of 7 years imprisonment was an appropriate starting point for offences of robbery where violence was used, which could be enhanced for other aggravating features.  In the event the starting point for sentence of 12 years was considered too high on the facts of that case.

10.Following Mo Kwong-sang, a starting point for sentence of 7 years for an armed robbery involving the invasion of private premises and physical violence is appropriate when considering the following factors:

(1)  The robbery was well planned and premeditated;

(2)  the victim had been targeted in advance;

(3)  she was young, female and alone;

(4)  there were two male robbers not one;

(5)  they were armed not only with a knife but also a pistol which was shown to the victim;

(6)  the victim was knocked unconscious by the manner in which they entered;

(7)  she was initially kept on the floor and a hand was forcibly placed over her mouth to stop her screaming;

(8)  the knife was used to cut open the suitcase in front of her;

(9)  she was scared and frightened by events and believed she would be harmed if she did not comply;

(10)  a considerable amount of money was stolen.

But I also accept;

(11)  other than being knocked unconscious and having a hand over her mouth, she was not thereafter harmed or injured;

(12)  she does not appear to have any lasting psychological affect;

(13)  the events lasted minutes not hours;

(14)  the pistol appears to have been shown momentarily and not used or displayed in a manner which suggested it was about to be used.

11.This was a well-planned, pre-meditated robbery of a target person in a previously identified hotel room.  The evidence before the Court suggests this was not a crime committed by the two men by chance. There is much more to this offending then meets the eye, not least because this was a slick operation carried out by two men who appeared almost nonchalant in their approach and in the manner in which they carried out this crime. The evidence suggested a professional attack of a young woman known to be in possession of a significant amount of money. Nevertheless, I consider an appropriate starting point for sentence to be one of 7 years’ imprisonment. As the defendants chose to have a trial, as is their right, I am unable to reduce that sentence by reason of any mitigation or for plea. Indeed, there was no mitigation as such from D1 as he does not accept the verdict of the jury.

12.The First Defendant has a significant previous record for matters of violence and dishonesty which is evidenced by the two separate offences of Conspiracy to Rob for which he received sentences of imprisonment. He had also previously received the benefit of a Rehabilitation Order. These sentences have neither rehabilitated nor deterred him.  His two offences of resisting arrest indicate his attitude towards authority as does the contents of his letter which shows he has no respect for the police, prosecution or jury. I will not punish him for that but I must mark the fact that this is not the first time he has come before the Courts and that this offence is similar to his previous offending. For that fact, and with the principle of totality in mind, I will enhance his sentence by 6 months. I hope that will remind him in future that continuing to offend will result in ever larger punishment.

13.The First Defendant will go to prison for 7 years and 6 months.

14.As for the Second Defendant, he has no such record. His previous offending is wholly dissimilar and occurred a long time ago.  I have taken into consideration the contents of the letter provided to the Court and have considerable sympathy for his pregnant girlfriend and his mother who suffers from ill-health but this offence is too serious to allow for any reduction in the sentence I must pass. He will go the prison for a period of 7 years.

15.There will be an Order in terms of the amended application for disposal of exhibits.

Mr James Sherry, counsel-on-fiat, for HKSAR

Mr Andrew Bullett, instructed by Ernest Tang Solicitors, assigned by the Director of Legal Aid, for the 1^st defendant

Mr David Boyton, instructed by Francis Kong & Co, for the 2^nd defendant