HKSAR v. Wong Shing Chi and Others
Read the full judgment text of HCCC 66/2023 on BabelCite. This High Court CFI judgment was delivered on 25 September 2023.
1. The present case involve five charges and eight defendants. They all pleaded guilty to the respective charge or charges that they each faced before a magistrate and they were committed to the Court of First Instance for sentence.
Cites 9 cases
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HCCC 66/2023 [2024] HKCFI 79 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 66 OF 2023 ________________________ BETWEEN
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________________________ REASONS FOR SENTENCE ________________________ Introduction 1.The present case involve five charges and eight defendants. They all pleaded guilty to the respective charge or charges that they each faced before a magistrate and they were committed to the Court of First Instance for sentence. 2.They confirmed their pleas and admitted the Summary of Facts before me in the last occasion and were convicted as charged accordingly. The Charges 3.Charge 1 (against D1 to D7): Conspiracy to rob. 4.Charge 2 (against D3 to D7): Possession of offensive weapon in a public place. 5.Charge 3 (D1 and D5): Robbery. 6.Charge 4 (D8): Robbery. 7.And Charge 5 (D3): Dealing with property known or believed to represent proceeds of an indictable offence. The Facts 8.I adopt the Summary of Facts that have been read out and agreed by the defendants, as follows: -
Criminal record and antecedents of the defendants. 9.D1 is aged 31 and was born in Hong Kong. He completed Form 5 education and he claimed to be a transportation worker. He is single. He appeared in court in five previous occasions involving 12 convictions between 2018 and 2021 involving one record of theft and two records of taking conveyance without authority between 2018 and 2021. He also has a record of claiming to be a member of triad society and acting as a member of triad society back in 2010. His last conviction was dangerous driving in 2021. 10.D2 is aged 25 and was born in Hong Kong. He was educated up to Form 6 and he has a clear record. He claimed to be a transportation worker. He is single. 11.D3 is aged 24 and was born in Hong Kong. He completed Form 3 education and was a waiter by occupation. He is single. He had one previous conviction of assault occasioning actual bodily harm and was put on probation for 18 months in 2014. 12.D4 is aged 30 and was born in Hong Kong. He completed Form 4 education and was a driver by occupation. He is single and he has seven previous convictions including indecent assaults, AOABH, claiming to be a member of triad society, trafficking in dangerous drugs, and common assault between 2008 and 2018. 13.D5 is aged 25 and was born in the mainland. He only completed Form 1 education. He is single and he has two previous convictions of trafficking in dangerous drugs and possession of dangerous drugs in 2012 and 2019 respectively for which he was sentenced to training centre and a drug addiction treatment centre. 14.D6 is aged 29 and was born in the mainland. He completed Form 3 education and is still single. He had appeared in court on six occasions between 2010 and 2021 involving seven convictions including two common assaults, affray, and acting as member of triad society. 15.D7 is aged 29 and was born in the mainland. He completed Form 3 education and was a transportation worker. He is still single and he had five previous convictions including wounding, AOABH, possession of dangerous drugs, burglary, and trafficking in dangerous drugs between 2010 and 2017. His last conviction was trafficking in dangerous drugs for which he was sentenced to 47 months’ imprisonment and he was discharged in October 2019. 16.D8 is now 36 and was born in Hong Kong. He completed Form 4 education and he claimed to be a salesman. He is still single and he had ten previous convictions between 2013 and 2014 involving possession of dangerous drugs, four charges of theft, and three charges of obtaining property by deception, and two charges of obtaining services by deception. Mitigations D1 17.In mitigation, Miss Nisha Mohamed, counsel for D1, told the court that D1 had a difficult childhood. He was adopted by his parents when he was three months old. However, his adoptive mother was cold towards him and she never showed him affection of love and has never played a part in his childhood. He was closer to his adoptive father, but he passed away four years ago. 18.He graduated from Queen’s College Hong Kong and he did well in his study but failed in his English paper. He did not have the drive to study further and he went to work at the age of 16. He got involved with the wrong company and got introduced to crime and committed the previous offences. 19.Prior to this incident, a colleague of D1 asked if he could take out a loan for him in D1’s name. D1 agreed to help him out. At first payments were repaid so he trusted this colleague, but when D1 took out another loan for this colleague, the loan was not repaid. D1 was stuck with the debt. He told a friend about his predicaments and the friend referred him to take part in the robbery for which he was now arrested. 20.His role was simply to drive and he was not told the full details of the robbery. He was only drawn to take part in the robbery as a desperate attempt to pay off the debt, it is submitted. D2 21.Ms Rachael Siu, counsel for D2, told the court that after graduation, D2 worked as a delivery worker and an Uber driver. At the time of the offence, he was earning approximately $10,000 per month. He was living with his parents and three siblings at the time of the offence. His father is a construction worker and his mother and sister both work as clerks. D2 has two younger brothers now aged seven and three years old who are still in school. He would contribute a few thousand dollars to the household expenses every month. 22.Regarding D2’s role as a driver, Ms Siu told the court that D2 joined the robbery because he was in financial difficulty. Apart from the contribution to his family, he was also behind some credit card payments. Ms Siu emphasised that D2 is remorseful and pleaded guilty as soon as he can. He has reflected himself during the time of the remand and feels ashamed of what he did and the burden he caused to his parents and siblings. 23.He has a clear record and this is the first time he committed an offence. It taught him a great lesson and he is determined to turn over a new leaf. He plans to study for certificates in construction or mechanical maintenance in the prison, so that he could work to contribute to the family financially. 24.D2 submits five letters from his family and friends for mitigation, which I have considered. His parents and sister wrote to plead for leniency. They commented that D2 was a filial son and caring bother. He took care of the younger brothers and his late grandfather before this offence. They believe that D2 is remorseful now and has learned a lesson and will turn a new leaf. 25.Ms Siu urged the court to consider that in the present case, the conspiracy was stopped by the police and no actual harm and violence was involved. D2 was not the mastermind and he was recruited as a driver only. D2 only acted as he did in a panic when the police were closing in and he had no intention of inflicting harm to the police. 26.Ms Siu also referred the court to HKSAR v Tsang Chi Ling and Kwok Ka Shun (HCCC63/2014, unreported), one of the seven authorities produced by the prosecution and submitted the facts and the modus operandus of the robbery there were very similar to the present case. A starting point of 7½ years was adopted by Mr Zervos J, as he then was. D3 27.Ms Priscilia Lam, counsel for D3, told the court that D3 was still 20 years old and was working as a waiter at the time of the offence. He was the sole breadwinner of the family and he had to support his unwell parents, an elderly grandmother and a younger brother with his income. His father had suffered brain cancer and had to undergo a surgery in the end of 2019. In order to earn some quick money, D3 agreed to join the robbery as he was under immense financial stress, but he just followed the others without knowing the details of the intended robbery. 28.D3’s father is now paralysed, I was told, despite various treatments he received. His mother also suffered from breast cancer unfortunately. His grandmother is now 96 years old and, of course, requires constant caring. D3 submits a letter from his mother and she prayed for leniency from the court so that D3 can unite with the family as soon as possible. 29.Ms Lam, in her mitigation, referred the court to HKSAR v Cheung Tak Wa and Another [2011] 2 HKLRD 923, a case concerning conspiracy to rob. The applicant there agreed to rob with another applicant with chloroform, but he withdrew at the end. The trial judge imposed a starting point of 6 years’ imprisonment and the Court of Appeal substituted with a sentence of 4½ years’ imprisonment. Ms Lam submitted that the starting point for Charge 1 should not be higher than 6 years’ imprisonment, and invited the court to take into account the lower culpability of D3. 30.As for Charge 2, possession of offensive weapon, it is submitted that the sentence should run wholly concurrent to the sentence on Charge 1 as they were part and parcel of the same offence. The sentencing guideline of 5 years as set out in Mo Kwong Sang had already taken into account of the fact that weapons would be displayed to the victim. 31.For Charge 5, money laundering, Ms Lam referred the court to the case of Secretary for Justice v Siu Yun Yee [2017] 3 HKLRD 678, concerning a black or illicit money totalling in the sum of $630,000. In that case, the Court of Appeal held that the appropriate starting point is 18 months’ imprisonment. As the total value of the watch in Charge 5 was not known and D3 estimated that it was over $100,000, and D3 had no knowledge of the predicate offence, Ms Lam submitted that the sentence should be in the range of 12 months’ imprisonment. 32.Finally, it is also submitted that the sentence on Charge 5 should run partly consecutive to Charges 1 and 2 on account of the totality principle. D4 33.Mr Ernest Yuen, counsel for D4, informed the court that D4’s parents divorced in 2016. Since then, D4 had never seen her mother again. Prior to the arrest, D4 was a transportation worker earning around $18,000 to $20,000 per month. He was living with his father. D4’s father had been unemployed for more than 10 years because of the injury from work. In recent years, D4’s father also suffered from stroke and other illnesses. D4 had been responsible for taking care of him. Due to the economic downturn in 2019, D4 became unemployed. As a result, he was lured to commit the present offence with a view to earning some quick money. 34.Mr Yuen submitted a letter of mitigation written by D4 in which he had expressed remorse and apologised to his aged old father who still came to visit him in the detention despite his poor health. He promised to turn over a new leaf and prayed for a lenient sentence. 35.As for Charge 1, Mr Yuen referred to the case of Lin Jinhuang and Two Others, CACC 171/2008, and the Chinese case of Ma Hoi Wing and Five Others, CACC 534/2013, both in which a 9 years’ starting point is adopted. The first case, however, involved the possession or the use of a firearm and both cases also involved the bringing of people from the mainland to commit robbery. 36.As for Charge 2, it is submitted that the possession of offensive weapon arose from the same set of facts, which could be said to be part and parcel of the robbery charge. The culpability of Charge 2 has already been reflected in the sentence of Charge 1, so the court was invited to order the sentences on both charges to run concurrently. D5 37.Miss Karen Lau, counsel for D5, submitted that D5 understood that the only mitigating factor of his case is his guilty plea. D5 made deep reflection during the four-year remand and has now turned a new leaf, I was told his plan was to pursue further studies in the prison and hopes to prepare himself by studying for a number of courses and to have the skills to prepare himself for his future after release from the prison. 38.Miss Lau told the court that D5 committed the present offence due to financial hardship. By the time the offence was committed, he has used up all his savings. Miss Lau stressed that D5 was not the mastermind of the cases and he was merely recruited to join the robbery. 39.For Charge 1, Miss Lau emphasised that no actual violence was used on anyone and no loss was caused. She asked the court to order the sentence on Charges 1 and 2 to run concurrently as they arose in the same incident. 40.For Charge 3, Miss Lau submitted that no actual violence was used on the staff members of the jewellery shop and no one was injured. D5 co-operated with the police and made full confession under caution. 41.A mitigation letter written by D5 was produced in which he said he is deeply remorseful and asked the court to be lenient to him so that he can be released as early as possible to take care of the family. 42.Miss Lau referred the court to two sentencing cases in the Court of First Instance in her submissions. The first one is HKSAR v Gurung Sanjan and Another ([2022] HKCFI 3516, unreported). Another one is HKSAR v Pun Lokendra Bahadur ([2023] HKCFI 1384, unreported). In both cases, a jewellery shop was robbed. In both cases, five or six robbers were involved and the use of hammer and other weapons in the course of robbery. A starting point of 7 years was adopted in both cases. D6 43.Mr Luk King-wan, counsel for D6, informed the court that D6 has been living with his mother aged 51 and his younger sister aged 15 and his stepfather. He has worked in the logistics industry, construction field and as a bartender and contributed half of his salary to his family. At the material time, D6 has been unemployed for 4 months and he was tempted to earn some quick money by some dubious peers and he was promised $30,000 as reward. 44.Mr Luk said D6 is now deeply remorseful and he feels ashamed before his mother and younger sister. His mother is also diagnosed with cancer in April this year. I have read the letters written by D6 and his mother. D6 is a filial son in the eyes of the mother and she believes her son has learned a painful lesson and she plead for leniency. D6 is determined to turn a new leaf and seeks to study in the prison to better himself when he is released. 45.Among the authorities submitted by the prosecution, Mr Luk submitted that the facts in HKSAR v Tsang Chi Ling and Kwok Ka Shun, HCCC 63/2014, is most similar to the present case. A starting point of 7½ years was adopted. 46.In relation to the possession of offensive weapon charge, Mr Luk submitted that it is committed in pursuance and as a consequence of the conspiracy to the rob charge and therefore, he urged the court to impose the sentences on two charges to run concurrently. D7 47.Mr Samson Hung, counsel for D7, informed the court that prior to the remand, D7 has lived together with his mother, aged 55, who is a widow together with his elder and younger brother, who is aged 30 and 26 respectively. 48.Mr Hung told the court that it was out of financial reasons and under bad peer influence that D7 committed the present two offences. Mr Hung produced a letter of mitigation written by D7 and D7 prayed for leniency. He is remorseful for what he did and is prepared to shoulder the legal consequences, I was told. To rehabilitate himself, D7 has completed a course in Christian studies during his remand and strive to turn over a new leaf. 49.In relation to Charge 1, Mr Hung relied on the Court of Appeal case in Lin Jinhuang and Two Others, CACC 171/2008 (unreported). This is a conspiracy to rob case where the Court of Appeal considered that a starting point of 9 years’ imprisonment was appropriate. The Court of Appeal found that the case involved a well-conceived operation which had substantial pre-planning, specifically recruitment of a number of persons as well as provisions of transportation, accommodation and equipment. Further, the execution of the object of the conspiracy involved bringing people in from the mainland to carry out robbery in Hong Kong. The people involved in carrying out the conspiracy were all armed, one of them even with an imitation firearm. 50.Mr Hung submitted that the present case is less serious as it is less well planned and less sophisticated. Also, it did not involve the recruitment of mainlanders and the provision of accommodation to the co-conspirators. Furthermore, no imitation firearms were provided in the present case. Mr Hung submitted that a starting point of 8 years’ imprisonment was appropriate for Charge 1. 51.For Charge 2, he also relied on paragraph 33 of the judgment in Lin Jihuang and urged the court to follow the same approach and order the sentences on the two charges to run concurrently. Finally, he urged the court not to enhance D7’s sentence on account of his previous convictions. D8 52.In mitigation, Ms Lisa Yip, counsel for D8, emphasised the fact that Charge 4 occurred on 3 December 2019 and appears to be a separate and independent incident involving D8 and other unknown persons. No evidence that the robbers in Charge 4 had anything to do with the other charges in this case or that D8 is in any way had the knowledge or involvement with other charges or that D8 knew the other defendants in this case or vice versa. 53.Ms Yip emphasised the role of D8 was akin to a foot soldier and he was in no way a party to the planning or the organising of the robbery in Charge 4. 54.Ms Yip told the court that D8 has a fiancé and they had planned to get marry prior to this incident. His fiancé was still willing to wait for his release from prison and to give him full support to turn over a new leaf. 55.D8’s father is now 70 years old and is still working in a tea restaurant earning only sufficient income to support himself and D4’s mother who is now already 69 years old. 56.Prior to the offence, D8 was working as a sales person earning approximately $20,000 a month, but after the social events took place in the mid-2019, his income was drastically reduced and he was in financial difficulties. 57.The only explanation for his commission of the offence was to earn quick money and he eventually received a total of $25,000 for his part in the robbery in Charge 4. Ms Yip emphasised that D8 agreed to join the robbery without thinking the consequences and he only found out that knives would be used and that the robbery included three other men and a getaway car. He was just following the instruction on the phone and acted as a lookout and he was not even masked during the incident. The robbers eventually got away in the car with the valuable loot and that was not within the control and expectation of D8. That said, D8 now accepted that he was in joint enterprise with the other robbers and he is ready to face the consequences. Sentencing Considerations 58.The leading sentencing guideline case for armed robbery is, of course, Mo Kwang Sang v The Queen [1981] HKLR 610. When the Court of Appeal set down those guidelines, it explained that they applied to armed robbery involving knives and other dangerous weapons, but not to firearms for which severer sentences were normally imposed. 59.The court fixed a base sentence of imprisonment of 5 years for an ordinary case of armed robbery, which would be increased to 6 years if it involved an invasion of private premises, 7 years if it involved any physical violence, and which could be further increased if there were any other aggravating factors, such as, an invasion of domestic premises during the night, the presence of more than one person in a group of robbers, threats made to the victims, ill-treatment of elderly persons and children, and a multiplicity of offences of a similar kind. 60.They noted that the background cases that they used as a reference in fixing the tariff involved several culprits armed with knives with which they threatened their victims before robbing them and, in most cases, tying them up. They said the armed robbery of this nature would cause terror to the victims as well as a loss of their possessions. 61.In HKSAR v Ting Chiu & Another [2003] 3 HKLRD 378, it has been held that the fact that a robbery involved more than one culprit was an aggravating factor because the threat or pressure exerted by a number of robbers on the victim were obviously more serious than those exerted by a sole robber. 62.The three robbery charges in this case are all in the nature of armed robbery involving knives. In Charges 3 and 4, during the course of the robbery, the robbers displayed knives and also pointed to the staffs of the jewellery and the watch shop. In Charge 1, there was the discovery of the two machetes and three long knives and a hammer inside the red taxi. In my mind, this is an aggravating factor which calls for an enhancement of sentence as all these three cases clearly displayed a preparedness on the part of the defendants to use the knives in the course of the robbery and to instil fear or, if necessary, even to exert physical violence to overcome the victim. 63.All the defendants, except D2, have previous records, some related to dishonesty such as theft and some related to violence such as AOABH or common assault. Those convictions, however, are not of sufficient numbers or similarity to warrant an increase in the sentence following the well-known principles set out in Chan Pui Chi [1999] 2 HKLRD 830. I accepted that in all the circumstances, the sentence should not be enhance for their previous records. As for D2, on the other hand, even though he has a clear record, there is clear authority that for an offence as serious as the present, previous clear record is not a significant mitigating factor. Charge 1 (D1 to D7) 64.The nature and circumstances of an armed robbery and the role played by the defendants in it are the key factors when determining an appropriate starting point for the sentence. The key factors in this case included:
65.Having considered submissions by the defence counsel, I do not find there are sufficient grounds to draw a distinction between the roles of the defendants. At the time of the offence, each of the seven defendants knew full well that they were going to commit a robbery on the street with the knives and hammer. They were no doubt part of a joint enterprise where the overall objective was known to them all. 66.According to D1’s mitigation, his role was simply to drive and he was not told the full details of the robbery. Even if it is the case that D2 only realised the complete picture or details at a later stage, it does not begin to mitigate, in my mind, his culpability as he decided to go ahead and participated in the conspiracy and remained to be the driver of the getaway taxi to assist the other members of the gang to escape after the robbery. 67.All defendants said they committed the offence because of economic hardships and they wanted to earn quick money. The court can never accept economic reasons for committing crimes. There is very little that can be advanced on behalf of the defendants by way of mitigation except for their timely plea of guilty for which they will receive the customary one-third discount to their sentences. 68.I have taken into account all the facts and circumstances of the case in Charge 1 and the role that the defendants were to play in carrying it out. If this robbery had been carried out as planned, it would have involved threatening and subduing the victim through the use of knives, who had with him substantial cash over HK$1 million, and the five defendants would make good their escape in the two getaway cars which were to be driven away by D1 and D2 respectively. 69.I have considered the decision in Lin Jinhuang and Two Others, (supra.), where the Court of Appeal considered that the appropriate starting point for the three applicants in a conspiracy to robbery charge is one of 9 years’ imprisonment. However, as rightly observed by some of the defence counsels in their mitigations, in that case, the execution of the object of the conspiracy involved, of course, the bringing of people in from the mainland to carry out robbery in Hong Kong. The people involved in carrying out the conspiracy were all armed and one of them even with an imitation firearm. All these aggravating features are not present in the Charge 1. 70.It is worth mentioning, however, that while the counsel for the applicants in Lin Jinhuang(supra.) have submitted that the upper band of 7 years’ imprisonment laid down in Mo Kwong Sang (supra.) would be appropriate, the Court of Appeal was quick to dismiss and held that while there may be instances when it is of assistance to have reference to sentence imposed in respect of the substantive offences when considering sentence in respect of conspiracy to commit the offence, the overriding principle remains that the sentence must be appropriate for the offence of which the offender has been convicted. 71.Having considered the overall circumstances of the case, I consider that the appropriate starting point for D1 to D7, given their different but yet equally important role in the conspiracy in Charge 1, should be one of 7½ years’ imprisonment. And with the one-third discount for their plea of guilty, the sentence imposed on D1 to D7 for Charge 1 is 5 years’ imprisonment. Charge 2 (D3 to D7) 72.D3 to D7, the remaining five members of gang in Charge 1 except the two drivers, were also convicted of POOW of five long knives and one hammer. Those dangerous weapons were all found by the police in the red taxi. Clearly, the existence of those items were to be used in the intended robbery and were possessed for unlawful purposes. 73.Under section 33 of the Public Order Ordinance, (Cap. 245) a person convicted of this offence shall be sentenced to imprisonment for not more than 3 years. In the circumstances of the case, I consider a starting point of 24 months is appropriate. And with the one-third discount on their pleas of guilty, the sentence on D3 to D7 is one of 16 months’ imprisonment. 74.In paragraph 33 of Lin Jinhuang(supra.), the Court of Appeal observed that although possession of the offensive weapon was appropriately charged as separate and distinct offence, it was committed in pursuance and as a consequence of the conspiracy to rob, so it was so much a part of the conspiracy that the sentence imposed should have been ordered to be served concurrently with the appropriate sentence imposed in respect of the conspiracy offence, which would have adequately reflected the overall criminality. 75.I therefore agree with the submission by counsels on behalf of D3 to D7 and order that the sentence imposed on Charge 2 should be served concurrently with the sentence on Charge 1. Charge 3 (D1 and D5) 76.The sentencing guideline in Mo Kwong Sang (supra.) applies in this case. Charge 3 concerned a robbery targeted on a jewellery shop. D1 played the role of the driver of the getaway taxi while D5 was one of the four male robbers entering the shop to commit the robbery. Long knives were used to point at the shop owner and the staff in the shop to threaten them to surrender the jewellery. A hammer was used to smash the glass of the showcase. The loss suffered by the jewellery shop is well over HK$1.2 million. 77.In sentencing this charge, I take into account the following aggravating factors:
78.D1 and D5 were acting in concert in this charge, together with the other three culprits. There is no ground to distinguish their roles in this charge. 79.The combined effect of these aggravating factors rendered Charge 3 a very serious case of robbery and I shall adopt an initial starting point of 6 years’ imprisonment on account of the fact that the subject robbery involves an invasion of private premises, that is, a jewellery shop in this case. Taking into account the aggravating factors identified, the sentence should be further enhanced and I would, in the end, adopt an overall starting point of 7 years’ imprisonment. 80.D1 and D5 both pleaded guilty to this charge, for which they will be given one-third discount. The sentence I impose on D1 and D5 for Charge 3 is therefore 4 years and 8 months’ imprisonment. Charge 4 (D8) 81.Charge 4 concerns an armed robbery targeted at a watch shop and the sentencing guideline of Mo Kwong Sang (supra.) was considered. 82.During the robbery, D8 was recruited to play the role of a customer in order to successfully gain entry into the watch shop to look for a watch for his girlfriend, and when he pretended to be leaving and opened the door, he just let the two other male robbers to rush into the watch shop to commit the robbery. The two male robbers were each holding a rucksack. One of them took out an 18-inch long beef knife from a bag and pointed it to the staff, threatening him not to move and open the showcases. The staff opened the showcases and the safe, and the other male grabbed the watches into the rucksack. Eventually, the two male robbers boarded a vehicle and fled. 83.Like the other two robbery cases, the robbery in Charge 4 is also well-planned and premeditated. Apart from the two actual robbers, it involved a driver in a getaway car and D8, of course, who posed as an interested customer in order to get round the fact that the door of the watch shop was not wide open to the public at large but remained closed at all times by an electronically-operated lock to be manned by the staff of the watch shop. 84.The use of a long knife to threaten the staff to open the showcase was frightening, of course, and what is more, it also indicated the preparedness of the robbers to use violence. One of the more aggravating feature is the fact that the substantial economic loss suffered by the watch shop was in the staggering sum of nearly HK$4.6 million. 85.Under caution, D8 said he was recruited to open the door of the watch shop for a reward of only $15,000. In mitigation, it was said that he did not know that it was an armed robbery and only came to know later. I find it hard to believe that D8 would be so naïve to believe that he would be awarded for $15,000 just for a simple task of opening the door of the watch shop. Even accepting for a moment that he may not know the full details of the plan of the robbery, it would be nonsensical for him to say that the two masked males he let inside to the watch shop would commit the robbery with just their bare hands without carrying any weapons. 86.Ms Yip described D8 as a foot solider yet without D8’s participation, the two males with the masks and rucksacks on their backs would certainly be denied entry to the watch shop by the staff in the first place and the robbery will be difficult, if not impossible, to be executed. I see no distinction on D8’s role between a person acting as a lookout and the driver of the getaway car. After all, the robbery was a joint enterprise and they committed the robbery together, albeit D8’s share of the proceeds of the crime may not be the same as the others. 87.In light of the enormous loss suffered by the watch shop, which is HK$4.6 million, although the number of culprits and weapons involved may be less than the other two robberies, I considered that I should also adopt an initial starting point of 6 years’ imprisonment on account that the robbery involves the invasion of a private business premises and enhance the starting point to one of 7 years and 3 months’ imprisonment on account of the aggravating features in this case. 88.There is no mitigating factor in D8’s case other than his plea of guilty. After one-third discount, the sentence, I shall impose on D8 is 4 years and 10 months’ imprisonment. Charge 5 (D3) 89.D3 also pleaded guilty to this charge in relation to cash in the sum of $120,000 and a Frank Muller watch bearing a serial number 259, which was one of the stolen watches in Charge 4. As said, D3 had tried to explain, firstly, under caution that the cash was his own money and he said that it was D6 who lent him the watch. He believed the watch was of questionable origin. He did not know why D6 lent the watch to him and he did not know how D6 obtained the watch. 90.As held in the case, HKSAR v Xu Xia Li [2004] 4 HKC, section 25(1) of the Organised Crimes Ordinance, Cap. 455, made no distinction to the culpabilities of a money launderer based only on reasonable belief of the source of the money and that of actual knowledge. The provision did not attach different culpabilities to the two types of mens rea. 91.It was also held that in the context of money laundering, the nature of the indictable offence from which the money was derived was of no particular significance in sentencing, save that if the defendant knew that the money was derived from a very serious crime, it would be an aggravating feature to be taken into account when sentencing. 92.The prosecution evidence in this case was insufficient to show that D3 was involved in the robbery of the watch shop (Charge 4). When considering D3’s knowledge or actual knowledge about the relevant indictable offence, I should not therefore interpret the facts in the most unfavourable way against him. 93.That said, by pleading guilty, D3 must have resiled from his original position that the $120,000 cash was his own saving. Insofar as the cash is concerned, in the absence of any credible explanation, by reason of his own plea in this charge, I concluded that D3 must have accepted that this sum of cash represented the black or illicit money which he knew or had reasons to believe represented proceeds of an indictable offence. 94.Insofar as the Frank Muller watch is concerned, it also does not now lie in the mouth of D3 to emphasize that he did not know the watch was a stolen property. Even accepting for a moment that he did not take part in the robbery of the watch shop, according to what the Court of Appeal has said in Xu Xia Li (supra.), it will not assist him to mitigate the offence when he already admitted under caution that he believed the watch was of questionable or suspicious origin. 95.The Summary of Facts does not mention the value of the watch, but after enquiry with the prosecution, the value of the watch is now known and it should be HK$86,000, to which Ms Lam has no objection. Therefore, the total proceeds of the indictable offence involved in this money laundering charge should be HK$206,000. 96.In Secretary for Justice v Wan Kwok Keung [2012] HKLRD 197, the Court of Appeal reiterated that “the sentencing starting point is 3 years or so where the ‘black money’ involved is between HK$1 million and HK$2 million”. Taking into account the black money involved in this charge is just about $210,000, I consider the appropriate starting point is 12 months and shall be reduced by one-third to 8 months’ imprisonment. Totality 97.Of the five charges, only the sentence on Charge 2 on D3 to D7 shall run wholly concurrent with the sentence imposed on Charge 1 on D3 to D7. 98.As for the other robbery charges, Charges 1, 3, and 4, these three charges concerned robberies committed or to be committed on different dates and on different locations and victims or victim’s company and thus merit consecutive sentences, subject, of course, to the consideration of totality. Final Sentence 99.D1 faces Charges 1 and 3. Having regarded totality, I order that 2 years of the sentence on Charge 3 to run consecutively to the sentence imposed on Charge 1. Finally, I order that, D1 is to serve a total sentence of 7 years’ imprisonment for the two charges. 100.D2 faces only one charge and it is Charge 1. Finally, I order that, D2 is going to serve a sentence of 5 years’ imprisonment. 101.D3 faces three charges, Charges 1, 2, and 5. The sentence imposed on Charge 2 is to run wholly concurrent with the sentence imposed on Charge 1. The sentences on these two Charges 1 and 2 is 5 years’ imprisonment. 102.The money laundering charge, Charge 5, is a separate and distinct offence with Charges 1 and 2, but because of totality, I further order that 4 months of the sentence on Charge 5 to run consecutively to the 5 years’ imprisonment on both Charges 1 and 2. Finally, I order that D3 is to serve a total of 5 years and 4 months’ imprisonment for all these three charges. 103.D4 faces Charges 1 and 2. The sentence imposed on Charge 2 is to run wholly concurrent with the sentence imposed on Charge 1. Finally, in D4’s case, I order that the total sentence on Charge 1 and Charge 2 is one of 5 years’ imprisonment. 104.D5 faces three charges, Charges 1 to 3. The sentence imposed on Charge 2 is to run wholly concurrent with the sentence imposed on Charge 1. Having regarded totality, I order that, 2 years of the sentence on Charge 3 is to run consecutively to the sentence imposed on Charge 1 and Charge 2, and the remaining of the sentence on Charge 3 to run concurrently with the sentence on Charges 1 and 2. Finally, in D5’s case, he is to serve a total sentence of 7 years’ imprisonment for all these three charges. 105.D6 faces Charges 1 and 2. The sentence imposed on Charge 2 is to run wholly concurrent with the sentence imposed on Charge 1. Finally, I order that, in D6’s case, the total sentence on these two charges is 5 years’ imprisonment. 106.D7 faces Charges 1 and 2. The sentence imposed on Charge 2 is to run wholly concurrent with the sentence imposed on Charge 1. Finally, in D7’s case, I order that the total sentence on these two charges, 1 and 2, is 5 years’ imprisonment. 107.D8 only faces one charge and it is Charge 4. Finally, he is going to serve a sentence of 4 years and 10 months’ imprisonment.
Mr Ng Wing-kit, SPP(Ag) for the Department of Justice, for HKSAR Miss Nisha Mohamed, instructed by Wai & Co, Solicitors, assigned by DLA for the 1st accused Ms Siu Suk-yu Rachael, instructed by C F Lee & Co, assigned by DLA for the 2nd accused Ms Lam Tsz-ying Priscilia, instructed by Tai, Tang & Chong, assigned by DLA for the 3rd accused Mr Ernest Yuen, instructed by H Y Leung & Co LLP, assigned by DLA for the 4th accused Miss Lau Yuk-yee Karen, instructed by Howell & Co, assigned by DLA for the 5th accused Mr Luk King-wang, instructed by Joseph M K Chan, Solicitors, assigned by DLA for the 6th accused Mr Hung Kin-man Samson, instructed by Eli K K Tsui & Co, assigned by DLA for the 7th accused Ms Yip Shui-hung Liza, instructed by Benjamin Au & Billy Chan, assigned by DLA for the 8th accused |
Cases cited in this judgment