HKSAR v. Chow Ho Man and Another

DCCC 929/2022

[2023] HKDC 1465

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 929 OF 2022

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REASONS FOR SENTENCE

Both defendants pleaded guilty to a charge of "Robbery". They went into an adult toy store and robbed the owner of his watch and cell phone as well as cash in the sum of about $5,000.

Summary of Facts

2.Mr. Poon (PW1)  operates an adult toy shop situated at 1^st Floor, Pak Yee Building, Nos.26-34 Kau Yuk Road, Yuen Long ("the Shop").

The robbery

3.About 9:00 p.m. on 5 February 2022, PW1 was alone in the Shop closing up.  Suddenly, 2 masked males (later identified as D1 and D2)  wearing black caps, long-sleeved tops (D1 in yellow and black; D2 in black), black trousers and gloves came into the Shop. They each held a long knife (respectively 40 cm and 45 cm in length).  They pointed their knives at PW1 and declared robbery.

4.PW1 took out cash from the cash box (in the sum of about $5,000)  and handed it over to them.  He also handed over a watch (in rose gold colour)  bearing the "Rolex" logo which he was wearing ("the Watch").  D2 grabbed a black Samsung mobile phone (valued at $8,000)  which was placed on the counter.  Both culprits then left.  The incident lasted for about 1 minute. PW1 was not injured.  He alerted the Police.

Post-robbery events

5.About 7:30 p.m. on 6 February 2022, an unknown male made a phone call to Cheung Kong Pawn Shop situated at Shanghai Street, Mongkok ("the Pawn Shop")  via phone number 5347 2744.  The owner, Mr. Chan (PW2), answered the call.  The caller asked PW2 not to close up yet and to wait for him for 10 minutes.  PW2 agreed.

6.About 8:40 in the same evening, an unknown male called the Pawn Shop via phone number 5347 2744 again, claiming that he was at the entrance of the Pawn Shop.  Later on, a male presented a watch with the "Rolex" logo for pawning.  PW2 refused to accept it because he found it to be a counterfeit.

7.About 9:19 in the same evening, an unknown male called the Shop via phone number 5347 2744.  PW1 answered the call.  The caller complained about PW1's watch and told PW1 that if he dared to call the Police, he would not be able to run his shop. About 2 minutes later, an unknown male called the Shop via phone number 5347 2744 again.  The caller told PW1 that if he dared to call the Police, he would not be able to run his shop and had to bear the consequences.

CCTV footage

8.CCTV footage of the Shop captured the robbery incident.

9.CCTV footage of a jewellery shop situated at Kau Yuk Road captured 2 masked males in clothing similar to the 2 robbers' alighting from a black Toyota Vellfire ("the Black Car")  and entering Pak Yee Building at 9:03 p.m. on 5 February 2022.  About 3 minutes later, 2 masked males left Pak Yee Building and boarded the Black Car.  The Black Car then headed towards the direction of Yuen Long Highway.

10.CCTV footage of the Pawn Shop captured a masked male in clothing similar to D1's going inside and carrying with him something in rose gold colour at 8:40 p.m. on 6 February 2022.  The same male left the Pawn Shop after about 1 minute.

11.CCTV footage obtained in the vicinity of the Pawn Shop captured a masked male in clothing similar to D1's alighting from a white Toyota Hiace LGV bearing plate number VP2303 ("the White Car")  at 8:39 p.m. on 6 February 2022.  The same male came out of the Pawn Shop and boarded the White Car at 8:41.

Arrest

12.D1 was arrested for "Robbery" on 24 February 2022.  Under caution, he claimed that it was Ah Fu who asked him to sell the Watch; and Ah Fu was Law Fu-wing.

13.D2 was arrested for "Robbery" on 30 March 2022.  In his video recorded interview, he claimed that his mobile phone number was 9443 8196, which was registered in his mother's name.

ID parades

14.In an ID parade conducted on 25 February 2022, PW1 identified D1 as one of the robbers.

15.In an ID parade conducted on 4 April 2022, PW1 identified D2 as one of the robbers.

Forensic evidence

16.The White Car was located on 6 February 2022.  Two long knives were found inside a brown paper bag placed underneath the front passenger seat.  On 25 February 2022, PW1 identified those 2 long knives as the knives used by the robbers.

17.A palm print lifted from the outside of the nearside front door of the White Car was confirmed to be D1's left palm.

18.Two DNA samples were lifted respectively from the handle and the outside sheath surface of one of the knives found in the White Car.  It was confirmed that they came from D1.

Mitigation & Sentence

D1

19.He is 30 and has 5 conviction records, which involved 5 drug-related offences and 1 "Criminal damage" offence.  His counsel Mr. Tang informed me that D1 is divorced with a daughter (aged 3), who is now looked after by D1's parents.  In mitigation, Mr. Tang submitted that prior to the present offence, D1 had been unemployed for some time.  He foolishly committed the robbery due to financial pressure.  Mr. Tang stressed that violence was not intended and no one was injured.

D2

20.He will turn 27 soon and has 17 conviction records, which involved 15 theft-related offences and a few violence-related offences.  His counsel Ms. Li informed me that D2 is single and resides with his mother.  In mitigation, Ms. Li submitted that D2 had trouble finding a job after he was released from prison in mid-2021.  D2 is a certified barista, but many cafes went out of business during the pandemic. Those which remained open refused to hire him because of his past.  He committed the present offence owing to financial pressure.

Sentence

21.I have viewed the video of both ID parades in open court.  For D1, each person at the line up wore a mask and a shower cap; they sat on chairs with their lower bodies covered by blankets.  For D2, each person at the line up wore a mask but no shower cap; they sat on chairs with both hands placed on their laps.

22.I was surprised by PW1's ability to identify D1 and D2 at the ID parades since both robbers were masked.  Be that as it may, both defendants took no issue with the ID parades and have admitted in open court that they were identified by PW1 as the robbers.

23.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime.  A clear message must be conveyed to the general public that robbery is a serious crime and that the offenders would most certainly be punished by long-term imprisonment.

24.In the present case, each defendant pointed a knife at PW1. The robbery lasted for about 1 minute and PW1 was not injured. PW1 lost about $5,000 in cash, a watch and a mobile phone. According to the Court of Appeal's decision in Mo Kwong Sang v The Queen [1981] HKLR 610, the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victim, should be 5 years' imprisonment.

25.I am aware of their criminal records, but since D1 and D2 have no previous "Robbery" convictions, I consider a starting point of 5 years' imprisonment just and appropriate in this case. With the timely guilty plea, the sentence is reduced to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence each defendant to 40 months' imprisonment.