COURT: Mr Chan King-lung; Mr Lau Chak-shing; Mr Chai Chi-wah, Ricky; and Mr Liu Kei-wing are D1, D2, D4 and D5 respectively of case number HCCC 79/2020, while Mr Suen Ka-in is the defendant in case number HCCC 178/2020. In this sentencing exercise, the court will refer to them by their surnames.
Suen pleaded guilty to 2 counts of handling stolen goods, each involving 4 watches, at the committal proceedings, and is committed to this court for sentence. The other 4 defendants pleaded guilty to a joint charge of robbery, while Chan also pleaded guilty to an additional count of arson, after all the four of them were committed to this court for trial.
Facts admitted
VIP Watch and Jewellery is a shop located at Ground Floor of 55 to 57 Hankow Road, Tsim Sha Tsui. I will refer to it simply as “the shop”.
On 1 July 2018, Chan checked in the Sun Kong Hotel in Yuen Long. At around 9 am, he drove a car of registration number UJ426 to a garage in Yuen Long to take a knife and then proceeded to Kung Um Road, Yuen Long, where he changed to a car of registration number SM9200.
He drove SM9200 to Lock Road, Tsim Sha Tsui, where three masked men, that is, Lau, one Khan Faizan Ali, and a wanted person, left the car at about 10.37 am to rush into the shop.
The wanted person smashed a glass display cabinet with a hammer of about 30 cm in length. He grabbed a number of watches and leather bracelets therefrom and put them inside his rucksack.
Lau and Khan respectively pointed an extensible baton and a beef knife, both of about 30 cm long, at the staff of the shop.
Lau shouted “Don’t move” and “Just want money”.
Khan grabbed the right arm of one of the staff members and pushed him into the inner part of the shop. He threatened the staff by repeatedly saying, “Robbery”, “Don’t move”, and “I will chop you”, pointing at the same time the knife at them. He also slapped the head of another staff member three times, shouting obscenity and “Don’t move”. This staff member was later medically examined and found to suffer from head injury with tenderness, bruises and swelling over the right side of the head.
33 watches and 6 leather bracelets of an estimated value of about HK$23 million were robbed. 8 watches and 4 leather bracelets of an estimated value of about HK$5 million were damaged.
A passerby reported the case to the police.
The robbers fled with the stolen properties and boarded SM9200 at Lock Road. The vehicle was driven away by Chan.
From 10.05 am to 10.40 am, Chai and Liu walked and lingered in the vicinity of the shop. They then left Tsim Sha Tsui and went to Kam Sheung Road by MTR.
At 11.55 am, Chan set fire on SM9200 at Tam Kon Chau Road, which was witnessed by the driver of a passing-by vehicle, who saw that Chan seemed to have burnt his leg. The driver made a report to the police. The police found a face mask and a lighter near the vehicle. The face mask was found to bear the DNA of Chan. The vehicle was confirmed to be RJ2382, which was reported stolen in March 2018.
Chan returned to Sun Kong Hotel at 12.10 pm.
Lau visited him at 12.50 pm and 1.10 pm.
Chan moved to Harbour Plaza Resort City at about 4.40 pm, leaving behind bandages and bottles of medicated oil at Sun Kong Hotel. On them, the DNA of Chan and fingerprints of Lau were found.
Chan was arrested at Harbour Plaza Resort City on 5 July 2018, and Lau on 9 July 2018 at Ground Floor of his home in Tin Shui Wai.
Lau admitted, under caution, that he and Chan took part in the robbery.
In a VRI subsequently conducted, Lau said that he had been recruited to do it by a friend named Jimmy. He pointed out that Chan was the driver of the seven-seater vehicle during the robbery. He and two South Asian males were on board. They were instructed by Chan to wear clothing which covered their whole body. There were beef knife, extensible baton, hammer and pepper spray on board of the vehicle. Chan pointed out the shop to them but they did not make any move at that time as they had received a call saying that there were police around. A second call told them to proceed to rob the shop, which they did. After the robbery, the two South Asian males were dropped off in Yuen Long without taking any of the stolen properties which were watches and bracelets. Lau drove the vehicle with Chan on board to a vehicle scrapyard, where they met three Chinese males. One of them instructed Chan to burn the car and this man took away the stolen properties. On 2 July 2018, Jimmy gave Lau $20,000. According to him, Chai and Suen visited China on 1 and 3 July 2018.
On 6 July 2018, Suen spent $93,633 to buy 2 gold bracelets in Mongkok.
On 17 July 2018, Chai and Liu were arrested by the Chinese police in Shenzhen. Cash of HK$1.74 million and 12 watches were seized at Chai’s home there. Suen was arrested by the Chinese police in Shenzhen on 19 July 2018 and Renminbi $60,000 was seized at Suen’s home. All of them were arrested by the Hong Kong police when they entered Hong Kong on 4 August 2018.
Chai admitted, under caution, that the watches found at his home were part of the watches stolen in the robbery, while the cash was the proceeds of the sale of some of the stolen watches.
In a VRI subsequently conducted, Chai admitted that he had received a total of 32 watches from his friend named Man on several occasions to be taken to Mainland for sale. The 12 watches seized at his home in Shenzhen were part of them. On 1 and 3 July 2018, he respectively received 4 watches from Man, which he took to China with Suen, selling to a Mainland Chinese male named Leung for Renminbi $850,000 and $720,000 respectively. On 4 July, he gave Suen 4 watches to take to Shenzhen but he later learnt that Suen had sold them. On 20 July 2018, he gave 20 watches to Lo Hing-kee to bring to China. He later received the 20 watches from Lo and Liu, and he sold eight of them to Leung for HK$1.84 million, which was the money seized at his home.
Under caution, Suen admitted that after the robbery on 1 July 2018 he took watches for Chai to China for a reward of $20,000 each time.
In a VRI subsequently conducted, Suen stated that he had received in Hong Kong 4 watches from Chai on 1 July 2018 and 4 watches from a person named Ah Kay through the arrangement of Chai on 3 July 2018. He gave the watches to Chai in Shenzhen. The total reward was HK$40,000. During the first occasion, Chai showed the watches to Leung and told Leung that the watches had just been robbed from a watch shop in Tsim Sha Tsui. On the second occasion, Chai gave him only $10,000, saying that the balance of $30,000 would be given to him after the watches had been sold. On 4 July 2018, when he was to deliver 4 more watches for Chai together with Ah Kay, he managed to get away from Ah Kay and sold the watches to his creditor for HK$400,000, getting a balance of HK$200,000 after repaying the debt. Two days later, he used HK$90,000 to buy a gold bar. The Renminbi $60,000 seized at his home in Shenzhen was part of this money.
A total of 25 watches of an estimated value of HK$16,300,700 were recovered and returned to the lawful owner.
Criminal record
Chan has 15 previous convictions not connected with dishonesty, the last conviction being criminal damage, which was similar to arson, for which he was sentenced to 4 weeks imprisonment on 3 October 2017.
Lau has a conviction of common assault, for which he was sentenced to 2 months imprisonment on 9 January 2020, and a conviction of AOABH, for which he was sentenced to 3 months imprisonment on 9 June 2023.
Chai has 10 previous convictions, of which 6 are offences of dishonesty, the last conviction being burglary, for which he was sentenced to 24 months imprisonment on 29 June 2015.
Liu has 16 previous convictions, of which 4 are offences of dishonesty, the last conviction being burglary, for which he was sentenced to 44 months imprisonment on 24 November 2014.
Suen has 20 previous convictions, of which 19 are offences of dishonesty, the last conviction being attempted burglary, for which he was sentenced to 2 years 2 months imprisonment on 5 December 2013.
Mitigation
Chan is aged 32 years, Form 2 education, being a driver and sole breadwinner of the family before his arrest. His mother passed away and his son was sent to Small Group Home when he was in remand for the present case.
Counsel for Chan, Mr Lee, points out that Chan has made deep reflection during the five-year remand and has now turned a new leaf. Chan committed the offence to get money to cure the cancer of his mother. He was not the mastermind of the case and he denies to have instructed the robbers of what clothing to wear and pointing out to them the shop to rob. Chan was instructed by Ah Man to burn the car.
Mr Lee submits to court a mitigation letter written by Chan. In the letter, he gives the same reasons for committing the offence as given by Mr Lee. During his remand, he lost his mother and he does not want to lose his child. He is deeply remorseful for what he had done and asks the court to be lenient to him so that he can be released as early as possible to take care of his child.
Mr Lee relies on the case of HKSAR v Hao Guichen & Ors, CACC 157 and 155/2019, and points out that Chan only took part in driving and then burning the vehicle used in the robbery. He asks the court to adopt a starting point of not more than 10 years imprisonment and give 25 per cent discount to Chan for indicating his plea of guilty before the trial day was fixed in November 2021.
Lau was aged 17 at the time of the offence and is now aged 22. He received Form 2 education and had worked as a vehicle attendant of a logistics company but was unemployed at the time of the offence.
Counsel representing Lau, Mr Chau, SC, urges the court to give some discount to Lau for the delay of the case through no fault of Lau, citing in support the case of SJ v Kong Chi Kiu, AR 5/2022. Mr Chau emphasises that Lau was not the mastermind. Although he held an extensible baton during the robbery, he only shouted “Don’t move” and “Just want money”. Lau made full confession to the police after arrest and even took part in a re-enactment of the case.
Mr Chau also points out the aggravating features in the present case but adds that the stolen properties, though of high value, were insured. He urges the court to adopt a starting point of 9 years imprisonment and give 25 per cent discount for the guilty plea of Lau and some discount for the delay of the case.
Chai is aged 44 years, Form 2 education, having worked mainly as a construction site worker. He is separated from his wife and was living with his girlfriend in China prior to his arrest.
Counsel for Chai, Mr Cheng, emphasises that although Chai was recruited by the mastermind of the robbery to bring the watches to China and to sell them for the reward of $20,000 for each watch, he did not take part in the actual robbery. Chai successfully sold 8 watches for about HK$1.4 million, which he handed to the mastermind. The HK$1.74 million was proceeds of sale of 8 watches, which was to be handed to the mastermind.
It was upon the revelation of Chai himself that the Chinese police was able to recover the money and 12 stolen watches. On the information given by Chau, 3 Chinese citizens involved in handling some of the stolen watches were arrested in China and, as far as Chai knows, they were prosecuted and each sentenced to 3 years imprisonment.
Mr Cheng asks the court to adopt a starting point in the region of 10 years imprisonment and give a discount of 20 per cent to 25 per cent for indicating his guilty plea in January 2023. Mr Cheng also relies on the authorities of HKSAR v Hao Guichen & Ors.
Liu is 46 years old, Form 3 education, being an odd-job renovating worker at the time of offence. He is single but has a son of 14 years of age.
Counsel representing Liu, Dr Mohamed, cites the sentencing guidelines for robbery in Mo Kwong Sang v R [1981] HKLR 610, but emphasises that the court should consider the whole circumstances of each case to arrive at an appropriate and just sentence, citing in support HKSAR v Man Siu Ming & Anor, CACC 318/2011. She points out that about HK$16.3 million has been recovered out of the value of about HK$23.1 million of stolen properties. She also relies on HKSAR v Hao Guichen and cites for the reference of the court the case of Sahil Kumar & Sanjeev Kumar, CACC 173/2021, regarding the quantum of sentence, which she regards to be not more than 9 years imprisonment.
She says that Liu committed the offence because he did not have a steady flow of work, resulting in a tight financial situation. He was promised a reward of $20,000 after the watches had been sold. He has not yet received the money and he deeply regrets for what he had done. Liu has a good relationship with his family, who are in court to support him. The mother of his son left the family after the son was born. Liu shouldered the burden of taking care of the son and his own widowed mother.
Dr Mohamed asks the court to give a discount of 25 per cent to Liu for his guilty plea, although she seems to be of the view that Liu may only get 20 per cent discount.
Suen is aged 38, married, and his wife and daughter, who was born in 2019, are living in Shenzhen. Counsel representing Suen tells the court that Suen is now working for The One Decoration Company Limited, specialising in providing assembling service to Ikea and Giormani products. The employer is aware of the situation of Suen, and is willing to continue to employ him. During the time of remand, Suen completed a correspondence course on study of bible and was awarded a certificate. Mr Lau submits the certificate to court.
Mr Lau points out that Suen was not involved in the actual robbery. At the time of the offence, his then-employer had not paid him wages for 3 months and his creditor had intimidated him and his family to force him to make repayment of debt. In order to get out of the situation, he impulsively and stupidly committed the offences. As he had sold the 4 watches of the robbery and kept the proceeds for his own use, he had been assaulted by assailants employed by Chai and Lau. The gold bar and the remaining money had all been taken by the two.
Basing on the recognition of Suen that one of the watches handled by him was valued HK$177,200, Mr Lau estimated that the total value of the watches handled by Suen was roughly HK$708,800. Mr Lau says that Suen was co-operative with the police after being arrested, showing his remorsefulness.
Mr Lau submits a number of mitigation letters to the court, all of which express good opinion of Suen. Mr Lau cites the case of HKSAR v Ng Kwok Wing, CACC 398/2007, and R v Chan Wing Kwan, CACC 121/1985. He also goes in great details the various factors for consideration in the sentencing of handling stolen goods, with reference to the factors to be considered as set out in R v Bernard Webbe & Ors [2002] 1 Cr App R(S) 22.
After referring to a number of other cases, he urges the court to impose a sentence of around 3½ years imprisonment for each charge, to run concurrently and to enable Suen not being required to go back to prison.
Sentence
The classical authority for sentencing in a case of robbery is, as rightly cited by counsel in mitigation, Mo Kwong Sang v R.
In the present case, weapons which took the form of an extensible baton and a beef knife were used. The robbers also took along a hammer. Although it was apparently used only for the purpose of breaking the glass of the show cabinet, it could certainly be used as weapon if necessary.
Actual violence was used on two of the staff members of the jewellery shop. One of the staff members was pushed into the inner part of the shop while the other member was slapped at the head, causing him injuries of tenderness, bruises and swelling over the right side of the head.
It is fortunate that the injuries were not too serious, but the fear these two staff members and the other staff members of the shop were put in can easily be imagined.
The robbery took place in broad daylight in the busy tourist district of Tsim Sha Tsui. This shows the blatant disregard of the law and safety of other people by those involved in the present case.
The robbery was a well-planned one. The vehicle used in the offence was stolen as early as in March 2018. It is quite obvious that these people had already begun to plan for the robbery by that time. The robbers were well organised, with good division of labour. There were people acting as lookouts to make sure that the situation was safe and there was no police around before they informed those who took part in the actual robbery to carry out the illegal deed.
After the robbery, the vehicle was driven to a rather remote place, where it was set on fire, obviously for the purpose of destroying the evidence. This, of course, will make the investigation by the police much more difficult, although the robbers in the present case had obviously failed to achieve that purpose.
Taking into account the value of the stolen items, which was about HK$23 million, and the value of the items damaged during the course of the robbery, which was about HK$5 million, the total value of properties involved was about HK$28 million. This is certainly not a small sum. Although quite a large part of the stolen properties and the proceeds for the sale of some of the stolen properties had been recovered, it still does not change the serious nature of the offence.
It is rightly pointed out by counsel that sentencing guidelines are not straitjackets. The court should, of course, impose a just and fair sentence, having regard to the different circumstances of each case, but the court is at the same time under the duty to ensure that sentences imposed in similar cases are consistent. It follows that the authorities on sentences in robbery cases cited by counsel are for reference of the court only because there would not be too many cases which are on all fours with each other.
Counsel place much emphasis on the case of HKSAR v Hao Guichen. The court does not agree, with due respect, that the authority is of a more serious nature than the present one. The court, of course, will still take it, and other authorities cited by counsel, into consideration. In the present case, Chan, Lau, Chai, Liu, were acting in joint enterprise, thus making them equally culpable.
Having considered the whole circumstances of the case and the relevant authorities, the court is of the view that the basic starting point of 10½ years imprisonment is just and fair. The court is of the view that a discount of 25 per cent to be given to Chan and Lau, and 20 per cent to Chai and Liu, for their guilty plea, is appropriate. Giving them also some discount for the delay of the case, Chan and Lau are each sentenced to 7½ years imprisonment, and Chai and Liu each to 8 years imprisonment.
Chan took part in burning the vehicle used in the robbery. For that offence, the court takes a starting point of 6 years imprisonment, and, giving him credit for his guilty plea and the discount for the delay of the case, the court sentences him to 4 years 2 months imprisonment for the offence of arson. As the burning of the vehicle is part and parcel of the robbery offence, the court orders the sentences of Chan in the offences of robbery and arson to run concurrently.
According to the charges, Suen handled a total of 8 watches. The stolen properties were 33 watches and 6 bracelets of a total value of about HK$23 million. The bracelets were of much smaller value. 8 watches are about one-third of the stolen watches and the value of them should be around HK$6 million. The estimated value of the 8 watches handled by Mr Suen by his counsel, Mr Lau, is totally out of proportion and unrealistic. The court also should not overlook that Suen sold another 4 watches, which were also stolen properties, for his own benefit, and this will increase the value of stolen properties which he had dealt with.
Having considered the circumstances of the case and the factors set out in R v Bernard Webbe & Ors, the court is of the view that a starting point of 4½ years imprisonment is just and fair. Giving credit to Suen for his guilty plea and a small discount for the delay of the case, the court sentences him to 2 years 9 months imprisonment.