COURT: Five people were arrested on 3 July 2019 for conspiracy to rob, and all subsequently charged with this offence. Of those five, one was also charged with use of a firearm with intent to resist lawful arrest and another was also charged with possession of arms without licence.
The two who faced these additional arms charges pleaded guilty to these at the earliest opportunity, but not the offence of conspiracy to rob. Two others of the five pleaded guilty to sole counts of conspiracy to rob. Therefore, some were committed for trial and some were committed for sentence necessitating two cases numbers.
Let me recap. In HCCC 311/2020, the 1st defendant, Hung Kwan-yu faced one charge of conspiracy to rob, Charge 1. He pleaded guilty on 7 December 2020. D2, So Ka-hei, faced Charge 1, conspiracy to rob. He too pleaded guilty on 7 December 2020. D3, Leung Tsz-chung pleaded not guilty to Charge 1, conspiracy to rob, on 7 December 2020, but pleaded guilty to Charge 2, making use of arms on the same day. D4, So Muk-kin pleaded not guilty to Charge 1, conspiracy to rob on the same day, but pleaded guilty to possession of arms without a licence.
On that day, 7 December 2020 in the Magistracy Court, those who did not plead guilty or not guilty to all the charges were committed to trial. That was under case number HCCC 310/2020. The 1st defendant was Leung Tsz-chung, the 2nd defendant was So Muk-kin and the 3rd defendant was Lai Wai-chun, all faced the sole count of conspiracy to rob.
After that committal and after trial dates were set down for HCCC 310/2020 and days prior to a case management hearing set down for 8 September 2023, both the 1st and 2nd defendants, Leung and So of 310/2020, indicated to the court that they intended to plead guilty to the outstanding charge they faced, conspiracy to rob. They pleaded guilty and admitted a Summary of Facts prepared for them on the first day of trial, 27 November 2023.
The only defendant of the five arrested and charged who proceeded to trial and convicted after trial by a jury, Lai Wai-chun of 310/2020 was convicted of the sole charge of conspiracy to rob. All five stand before me today for sentence.
The Facts of this case
The police conducted an anti-robbery operation on 3 July 2019. There were police officers on foot and in vehicles in and around Lok Ma Chau Control Point from very early in the morning. It was the prosecution’s case that there was a conspiracy to rob two victims arriving in Hong Kong just after 6 am that morning, carrying cash of over US$1.68 million.
The only defendant who pleaded not guilty to this conspiracy, Lai Wai-chun, entered the territory three to four minutes before the two victims. She must have kept them under observation because at 6.06 am she made a phone call to four men in a private vehicle close by informing them that one male, one female were in a green taxi, KF716, and had a white recycling bag containing cash. She was overheard giving these details over a mobile phone by a surveillance plain clothes officer who had followed her from about 6 am.
That officer relayed that information to the rest of her team nearby. A couple of minutes later, police in a vehicle pulled over the green taxi, KF716, as it was leaving Lok Ma Chau, to find the two victims, one man, one woman with that much cash in two bags. Two other police vehicles very close by intercepted a private car heading in the direction of that green taxi, leaving the control point. Essentially they sandwiched that vehicle and told all the occupants to get out. There were four men in the vehicle and the driver did try to escape but failed when he crashed into a police vehicle. The four men tried to get out and run away before being captured.
D3 of 311/2020 and D1 of 310/2020, Leung, pointed a torch-shaped device at a police officer who heard electricity spark from it. That officer took out his revolver and warned this defendant to stop. Leung sensibly dropped the device and gave up. These are the particulars of Charge 2 of 311/2020.
D4 of 311/2020 and D2 of 310/2020, So Muk-kin, also fled from a rear car door. He was seen throwing away a torch-shaped device in a bush before he was arrested. That device was located, and it was also a stunning device. These are the particulars Charge 3 in 311/2020.
The vehicle was searched and amongst many items found, two very long beef knives with their handles wrapped in cloth were found, as well as another activated torch-shaped stun gun, a bag containing a hammer, a screw driver, tape, zip ties, a Honda car key and a Samsung mobile phone with a pre-paid SIM card in it with the number 5106 0599.
The defendant Lai Wai-chun had used a pink Samsung to call this Samsung found in the vehicle. She was pivotal in the conspiracy by relaying information to the four men to lead them to the two victims and cash in a taxi.
A Honda was found later that afternoon in the New Territories and the key found in that first vehicle with the four men was used to open, unlock this Honda. This Honda had false plates. The police found inside this second vehicle a mobile phone belonging to the 1st defendant, Hung, of 311/2020, as well as his wallet and Mainland driving licence. The police also found a mobile phone belonging to D3, Leung, of 311/2020, as well as his wallet. They found two other car plates with a different registration number and near the vehicle, outside, were two cans of thinners, flammable liquid.
The only defendant to go to trial, Lai, was observed walking straight to the departure hall of Lok Ma Chau Control Point after she had made that call at 6.06 am. She passed through immigration to return to the Mainland. She had been in Hong Kong for 18 minutes. The officer who had put her under surveillance followed her through and located her on a cross-border bus ready to leave the control point. She was arrested by a second surveillance officer and searched.
A pink Samsung was found on her, but without the pre-paid SIM card in it. Nevertheless, the police were able to retrieve messages from it to show that it had had a pre-paid SIM card in it with the number 6438 1036. Telephone records showed that number had called 5106 0599 at 5.54 and 6.06 am that morning.
In short, there was a conspiracy to rob the two victims coming from the Mainland into Hong Kong carrying a large amount of cash. The only defendant to go to trial, Lai, was to enter the territory with them and watch them. She was to let her co-conspirators know by phone how they were travelling out of the control point. Once she fulfilled this role or job, she left the territory immediately.
The police were able to get to the two victims in the green taxi before the four men. This robbery was thwarted. Those three torch-like devices or stun guns were designed or adapted to stun or disable a person by means of an electric shock when applied either with or without direct contact with that person.
Mitigation
I heard full mitigation on behalf of the four men who pleaded guilty, as well as Lai, convicted after trial. All that can be said has been said on their behalves.
Hung, the 1st defendant of 311/2020 is now 33 years old and had a clear record. He admits he was the driver of the vehicle at the time the police intercepted it. At the time of his arrest, he was single, living with his family and had previously worked as a cashier and a driver, but was unemployed at the time of the offence.
He was offered the job as a driver in the robbery and would have received a financial reward, but he had nothing to do with the plans, nor was he a mastermind. He accepted the job because he and his family were in financial difficulty from a noodle shop business they had set up.
I have received mitigation letters from himself and members of his family, as well as a friend. They confirm he foolishly committed this offence to try to alleviate family hardship and he is genuinely remorseful. His plea of guilty at the earliest opportunity does express his remorse.
So Ka-hei, the 2nd defendant of 311/2020, is now 28 years old and also had a clear record. He too was unemployed at the time of this offence, having worked previously as a salesman. He lives with his family and is single. His family were being harassed at the time by debt collectors because his father had incurred some serious gambling debts. He agreed to participate in this robbery for quick money to try and alleviate his family’s problems. He too was not the mastermind.
I have received letters from the defendant himself and family members. He expresses deep regret, whist his family explained he was foolishly, but kind-heartedly trying to help his troubled family.
Leung Tsz-chung, the 3rd defendant of 311/2020 and the 1st defendant of 310/2020 is now 27 years old, single and had a clear record. He too was living with his mother and sisters at the time of the offence. He was unemployed when arrested and frankly admits that he committed the offence to earn some money. He was not a mastermind, more a foot soldier like the other three men.
So Muk-kin, the 4th defendant of 311/2020 and the 2nd defendant of 310/2020 is now 29 years old, single and at the time of the offence, had a clear record. He too was offered money, and because he was unemployed at the time, he greedily accepted the offer. He too was in no way the mastermind or a ringleader. He stresses the vehicles related to this offence did not belong to him, nor did any of the weapons. They were provided to them all.
I have letters from the defendant himself explaining his family situation, why he not only has to work to support them but offers much physical and emotional support. He is sorry they have had to cope without him since his arrest and remand. He is genuinely remorseful. I have letters from his brother and a teacher from his old school. Both are shocked that he has committed this offence and asked for leniency. They are sure he will not re-offend.
Lai, the defendant, convicted after trial in 310/2020, is now 54 years old. She too had a clear record prior to this conviction. She has three children from two relationships but is presently single. Her first husband died in a car accident. She lives just across the border but has a Hong Kong identity card and is a resident.
For many years, she worked as a parallel trader up by the border. Mr Woon has said all he can say in light of the fact that the defendant was convicted after trial. The majority of the jury clearly did not believe her evidence. They did not believe she picked up that pink Samsung phone without a SIM card in it. They did not believe she was not the one to make the phone call to co-conspirators about the details relating to the two victims.
It has been submitted on her behalf that she was not the mastermind, nor did she play a significant role. She was only to tip off the co-conspirators as to the victims’ movements. Once she did that, she left for the Mainland immediately after the call.
It has been submitted that despite evidence of many frequent phone calls between the two incriminating mobile phones found, the one on her and the one in the vehicle with the four men, there was no evidence that those many calls for nearly two weeks prior to this offence were related to the robbery.
In addition, there is no evidence that she knew any of the four men personally, nor had she met them, nor discussed the plans with them individually. There was no evidence she knew how much the victims were carrying, nor that they would be robbing the victims with weapons such as beef knives or stun guns or hammers.
Mr Woon accepts that there are aggravating factors such as the number of would be robbers and the potential violence that could have been inflicted on the victims, but submits no other aggravating factors exist. He stresses the robbery was thwarted and no loss was suffered.
Sentencing
I am sure, if the police had not got to the two victims and their large bags of cash just after their taxi left Lok Ma Chau arrival control point, they would have been, within minutes, robbed by four men in that vehicle and of that money. Those men were armed with many weapons available to them, including stun gun devices, beef knives, a hammer, a screwdriver. There were also rolls of tape and zip ties. They would most likely have met the taxi on a public road before the highway at the crack of dawn. They would have had to stop the taxi somehow to rob those two victims.
All counsel have urged me to consider the authority of Mo Kwong Sang v The Queen [1981] HKLR 610. The Court of Appeal there indicated the level of sentence for armed robbery the court felt appropriate and any aggravating factors that would enhance the sentence.
It was held that the appropriate sentence in an ordinary case of armed robbery, where the defendant was carrying a knife or other dangerous weapon which was displayed to a victim, the appropriate sentence should normally be 5 years’ imprisonment.
If there were other factors that existed, then a higher sentence would be appropriate. If a robbery involved an invasion of private premises or there was any physical violence used on any of the victims, then a significantly higher sentence would be appropriate. Other aggravating factors considered included whether there were more than one robbers, threats made to victims, any ill treatment of elderly people or children as well as a multiplicity of offences of a similar kind.
I have also been referred to some other authorities by counsel and sentences imposed for conspiracy to commit robberies, but they are not very helpful or useful in determining a starting point. When the cases are fact-sensitive, a comparison of other sentences imposed for similar charges are not often helpful.
What is accepted by all is that there is no doubt this was a well-conceived operation or conspiracy which involved substantial pre-planning, and the specific recruitment of a number of people, four men, as well as provision of transportation and weaponry. There were enough weaponry in the vehicle for all four men to brandish something.
There were two vehicles here, one with false plates and two cans of thinner flammable liquid next to the one found later. It would appear that likely one or more of the vehicles would have been set on fire if the robbery had been successful.
There is evidence from the phone records that Lai, who called with the information of the vehicle transporting the two victims, had been communicating with someone in possession of the phone in the vehicle with the number 5106 0599 for about two weeks prior to this offence date.
From 20 June 2019, there were phone calls almost every day, and several times a day with fairly lengthy durations ranging from a few seconds to six and a half minutes. I am sure this is evidence of substantial pre-planning.
There is no differentiating in the roles of the four men found in the vehicle. I have been urged to consider the role of Lai, convicted after trial, being different. It has been suggested her role can be differentiated from the other four defendants. Mr Woon suggests her role was minor because she was not present at the scene of the planned thwarted robbery, did not play a significant role and left Hong Kong immediately after tipping off the co-conspirators. There is no evidence she played an active part in the planning or arrangement of weapons or vehicles.
However, with respect I do not agree. Her role was pivotal in this conspiracy. Without her following the two victims and keeping them under observation, in order to tip off her co-conspirators so that they could follow, ambush this taxi, the robbery would not have got off the ground. Her role is as serious as the four men in the vehicle.
I have taken all those factors into account, as well as the authority of Mo Kwong Sang. I will take a starting point of 5 years for the fact that there were weapons to be used or displayed to threaten the victims and the taxi driver. I increase that to 7 years to take into account the fact that there were four robbers who all had access to weapons. This was not a case of a robber facing a victim with other people around him to support him, but a much more serious case of four potentially heavily armed men.
I further increase the starting point to 8 years to take into account the amount of money the victims were carrying and how much could have been stolen. Of course, there is no direct evidence any of the five knew of the exact amount, but I doubt very much this amount of pre-planning and preparation would have gone into this robbery if the amount to be stolen was not large.
Lastly, I increase this to 9 years to take into account I am sure, this vehicle of four robbers would have had to forcibly stop or even run the taxi off the road at a fairly secluded part of these roads so early in the morning. I am sure the taxi driver and the victims would have been subjected to as big an ordeal or trauma or fright as those who are confronted and robbed either in private premises or late at night.
Therefore, I take a starting point of 9 years’ imprisonment for the conspiracy to rob charge.
For Charge 2, faced by Leung Tsz-chung of 311/2020. It is a serious matter to resist or evade arrest or obstruct an officer by pointing an active stun gun at him. After all, the officer took the threat so seriously, he pulled out his own revolver to subdue Leung. This offence carries a maximum term of imprisonment of life, which reflects how serious it is.
In this case, I take into account the weapon involved, a stun gun capable of incapacitating a person if it is applied to sensitive areas, or even without direct contact with a person. I find a starting point of 2 years and 6 months’ imprisonment appropriate.
For Charge 3, faced by So Muk-kin of 311/2020, possession of arms without a licence, I take into account the fact he, although got out of the vehicle to run away from the police with a stun gun in his hand, he threw it away in a bush rather than brandish it towards any officer to escape arrest. I find an appropriate starting point to be one of 18 months’ imprisonment.
Hung Kwan-yu of 311/2020 pleaded guilty at the earliest opportunity to the 1st count of conspiracy to rob. I will take a starting point I find appropriate for this serious offence of 9 years’ imprisonment. After that discount of one-third is applied, the sentence is reduced to 6 years’ imprisonment.
Similarly, So Ka-hei of 311/2020 pleaded guilty at the earliest opportunity to Count 1, conspiracy to rob. I take the starting point I find appropriate for this offence of 9 years. I apply the discount of one-third which reduces the sentence to one of 6 years’ imprisonment.
Leung Tsz-chung of both 311 and 310/2020 faces two counts. He pleaded guilty at the earliest opportunity to Charge 2 of 311/2020. I have considered the facts surrounding the commission of this offence, as well as the weapon that was pointed at the police officer, its functions and potential injury it could cause. As I said, I find a starting point of 2 years and 6 months appropriate. He is entitled to a full discount for his early plea which reduces the sentence to one of 1 year and 8 months’ imprisonment.
The same defendant also pleaded guilty to the sole charge of conspiracy to rob in 310/2020 but pleaded after a trial date had been set down. I take a starting point of 9 years’ imprisonment, but find he is only entitled to a discount of 25 per cent for this late plea. The sentence is reduced to 6 years and 9 months’ imprisonment.
For Leung, I have taken into account the totality principle. Although both charges were committed on the same day and during the same course of events, they are distinctly separate independent criminal acts. I will order part of the sentence imposed for Charge 2 to run consecutively to Charge 1 to reflect the criminality of these two offences. I make clear the specific criminality refers to the fact he not only took the weapon out of the vehicle, but pointed it activated, at a police officer.
I will order 3 months of the sentence for Charge 2 to be served consecutively to the sentence for the conspiracy to rob, with the balance served concurrently.
So Muk-kin of both 311 and 310/2020 also faced two counts. He pleaded guilty at the earliest opportunity to Charge 3 of 311/2020. I have considered the facts surrounding the commission of that offence. He took out the stun gun from the vehicle but threw it away in a bush as he ran. I take the view he was trying to dispose of an incriminating weapon, as opposed to carrying it to prevent or evade arrest.
I find the starting point of 18 months’ imprisonment appropriate for Charge 3. After the full discount is applied for his plea, the sentence is reduced to 1 year imprisonment.
The same defendant also pleaded guilty to the conspiracy to rob charge of 310/2020 but pleaded after a trial date had been set down. I take the starting point of 9 years’ imprisonment for this charge, but find the defendant is only entitled to a discount of 25 per cent for his late plea. After that discount of 25 per cent is applied, the sentence is reduced to 6 years and 9 months’ imprisonment.
I have taken into account the totality principle, and that both charges were committed on the same day. I will order both sentences to run concurrently, because I have taken into account the possession of such weapons in coming to a starting point of 9 years’ imprisonment for Charge 1. This defendant did not point an activated stun gun at a police officer, potentially putting him at risk.
Lastly, Lai Wai-chun. As I have said above, I do not differentiate her role with those of the four men. I find her equally culpable. Her role was very different to the other four defendants. They were on the front line, so to speak, but her role was, pivotal in executing this conspiracy.
This defendant was convicted after trial. I have considered mitigation and find there is no mitigating factors to take into account. I will, as I have done with the other four defendants, take a starting point of 9 years’ imprisonment. As there are no mitigating factors to consider, this defendant is sentenced to 9 years’ imprisonment.