COURT: The three defendants, D1, D2, and D3, were jointly charged with one count of robbery (“Charge 1”). D1 alone faces one count of possession of dangerous drugs (“Charge 2”). The three defendants pleaded guilty to Charge 1 and D1 pleaded guilty to Charge 2 at the Magistrate’s Court and were all committed to the Court of First Instance for sentence.
Before me today, all of them confirmed their pleas of guilty and agreed to the Summary of Facts.
Facts of the Case
Charge 1
The robbery count alleges that D1, D2, D3 on 18 January 2021, together with persons unknown robbed a Ms Yan at Room 801 of Ricky Centre in Kwun Tong, Hong Kong (“the Office”) of HK$3.5 million and a mobile phone. The facts giving rise to this charge are as follows.
Ms Yan and her husband have been trading in cryptocurrency since October 2018, during which they were acquainted with a man, a Wanted Person 1 (“WP1”), who operated from the office. Prior to the offence in question, four successful trades had taken place between Ms Yan and that WP1. On 18 January 2021, the date of the offence, Ms Yan arrived at the office for another trade in cryptocurrency. She was there to sell Tether coins to WP1 for which she would receive HK$3.5 million in cash, all in HK$1,000 notes. She put the cash she received from WP1 into a Mannings plastic bag which she intended to place into her own handbag.
At that point, Ms Yan saw three to four masked males, including D1, D2, D3 and a Wanted Person 2 (“WP2”), collectively (“the Robbers”), armed with weapons, dashing out from a room within the Office. One of the Robbers held a knife whilst another held a stun gun which looked like a metal rod with a corrugated surface. One of the Robbers pointed the knife at Ms Yan and said in Cantonese, “Do not make a sound. I won’t hurt you.” Ms Yan, feeling scared, began moving backwards after placing the money on the desk. The Robber immediately took the Mannings bag, snatched Ms Yan’s mobile phone and passed it to the other Robbers. Ms Yan was then instructed to stay inside a room in the Office during which her handbag was searched. The Robbers soon left and a report was made to the police.
The Robbers were seen leaving the commercial building at about 2.30 pm on that day. They got on a light goods vehicle and left the scene. Upon arrival at Siu Hong Station in Tuen Mun, the Robbers alighted from the light goods vehicle. Their escape route was captured by the dash camera installed on the light goods vehicle. On the route of their escape, the police were able subsequently to recover a knife with cover, balaclavas, a grey knitting hat, gloves, a stun gun, clothing items and a surgical mask. Some of these items were later positively identified by Ms Yan.
Upon investigation, the police found that D1 and D2 were at the time residing in a hotel room in Tin Shui Wai (“the Hotel”). On 21 January 2021, three days after the robbery, the police mounted an operation at the Hotel. D1 and D2 were eventually arrested after some resistance and vigorous struggle. Under caution, D1 admitted having been asked by “Ho Chai” (豪仔) to rob the female, whereas D2 remained silent.
Six months later on 21 July 2021, D3 was arrested during a stop and search on the street. He initially remained silent under caution for the robbery offence. And in a subsequent video-recorded interview, he admitted:
(i) he was acquainted with D1, D2 and WP2. He met the other Robbers on or about 16 or 17 January 2021 at the hotel where he was told there would be a job in the morning of 18 January 2021 for stealing money from a cryptocurrency seller at the office;
(ii) his role was to look out for who would attend the sale together with the lady, Ms Yan;
(iii) the logistics of the escape had been discussed amongst the Robbers, but D3 was adamant that he only came to learn about the amount of cash being to the tune of HK$3.5 million taken from Ms Yan from the news reports after the offence;
(iv) D3 entered the Office with D1, D2, and WP2 and that WP1 was a member of the gang;
(v) when they emerged from a room in the Office to rob Ms Yan, D1 held a knife, D2 held a stun gun, but D3 himself said he did not take out the extendable baton inside his backpack;
(vi) after the robbery, the Robbers disposed of their belongings, including the knife, stun gun, and extendable baton along the escape route; and
(vii) D3 was given HK$80,000 as reward for his role in the robbery.
The facts also revealed that D2 was in contact with WP1 at around midnight prior to the commission of the robbery.
The stun gun in the form of a metal rod retrieved by the police was found to be capable of generating over 3,500 high voltage pulses continuously in three seconds for both electrodes. It was found to be a portable device designed and adapted to stun or disable a person by means of an electric shock.
In relation to Charge 2, the possession of dangerous drugs count, the facts are that the two rolls of cannabis found on the ground next to the bed in the hotel room on 21 January 2021 were confirmed on examination to be burnt hand-rolled cigarettes containing 0.29 grammes and 0.02 grammes of herbal cannabis. In the video-recorded interview taken from D1 subsequently, he admitted that the two cannabis rolls belonged to him for his own consumption.
Defendants’ Background and Mitigation
D1
D1 is now 23 years old, born in Hong Kong. He received education up to Form 3. He was unemployed at the time of the arrest. Prior to these offences, D1 lived with his father, mother and elder brother in Tin Shui Wai. He has one previous conviction for assault occasioning actual bodily harm back in 2013, for which he was placed on probation for 12 months.
In mitigation, Ms Alva highlighted the fact that D1 had pleaded guilty to the two charges at the earliest opportunity. The court has also received a mitigation letter written by D1 himself in which he expressed his genuine remorse and offered apology to the victim, Ms Yan. The court is also told that whilst in remand, D1 has received continuous support from his family members and it saddens him that his grandmother passed away whilst he was incarcerated a few months ago.
As to the circumstances of the offence in question, Ms Alva identified the various features present in this case as follows:
(a) Participation of more than one person wearing masks in private premises where PW1 had gone to do a cryptocurrency transaction;
(b) Display but not use of a knife and a stun gun, and it is said by Ms Alva that there was no reason for the victim to believe it was a stun gun as the victim described it as a metal rod with corrugated surface;
(c) The robbery offence did not involve pistol-like objects or firearms;
(d) The facts show there was planning, but there was no physical violence, or ill-treatment. Nor was any person attacked or injured. In fact, Ms Alva highlighted that the victim, Ms Yan, heard from the Robbers that she would not be hurt and she was even offered water by one of the Robbers.
It is accepted by Ms Alva in her mitigation on behalf of D1 that for the aggravating factors as identified for which all the defendants bear equal culpability as they were aware of the nature of the intended robbery, the court ought to enhance the starting point. This is a sensible stance to take by Ms Alva.
In relation to the possession of 0.31 grammes of herbal cannabis, Ms Alva asked the court to impose a modest fine on D1. She prays in aid the case of HKSAR v Castano, CACC 174/2014, in which the Court of Appeal referred at paragraph 20 to another case of HKSAR v Touray Edrisa, CACC 124/2010, where a fine of $2,000 was found to be appropriate for a charge of possessing 0.6 grammes of herbal cannabis. In the present case, the quantity of herbal cannabis involved was half of that in Touray Edrisa. Hence, Ms Alva suggested the court should consider a fine of HK$1,000.
D2
D2 is now 24 years old, was born in Hong Kong and educated up to Secondary 2. His parents were divorced and prior to his arrest, he lived with his father and elder sister in Tin Shui Wai. I am told that D2 used to work as a transportation worker, but was out of job at the time of the offence due to the pandemic.
D2 has seven criminal conviction records, the last of which was in 2014. Whilst they span a wide range of offences, those which are most relevant to this particular case include his conviction for shoplifting back in 2013 for which he was sentenced to a probation order of 18 months, an order which he breached twice afterwards.
Mr Yip submitted in mitigation that this is the first time D2 has committed robbery and that all the previous convictions relate to offences committed by him when he was still under the age of 16. The court accepts that for the purpose of my sentencing of D2, there is no basis for me to enhance the starting point for D2 on the ground that he has any repeat offending in light of his previous criminal record.
D2 has also produced a mitigation letter in which he expressed his wish to continue to be a filial son taking care of his family and asked for a chance to rehabilitate for his own sake and for that of his family. I am told that D2 has the support of his family, as well as his co-workers, who wish to assist him in finding employment after his release from the inevitable period of imprisonment.
D3
D3 is now 21 years old, born in Hong Kong. He received local education up to Secondary 6. He worked previously as a part-time warehouse worker. And at the time of the arrest, he was unemployed, but before his arrest, he resided with his mother, elder sister, elder brother in Yuen Long.
He has one criminal conviction of possession of dangerous drugs in relation to his arrest for the present case for which he was fined HK$500. That offence took place subsequent to the commission of the present robbery offence. I am prepared to accede to Ms Lan’s request to treat D3 as a person with clear record for the purpose of his sentencing exercise.
The court has been provided with 21 mitigation letters written by D3 himself, his family members, relatives, former teachers and friends, who all speak good of D3’s general character and urged for a lenient sentence on his behalf. It is evident that D3 has a lot of support from those who care for him.
In his own handwritten letter, D3 made it clear that he understands the seriousness of the offence and is prepared to bear the legal consequences for his misdeeds while being determined to start anew and undertake not to reoffend in the future. The court has also been provided with a certificate showing the effort made by D3 whilst in remand and that he has completed a religious course. These letters and the certificate are said to be indicative of D3’s willingness to rehabilitate. He himself said in his letter that he is determined to better himself academically by pursuing his unfinished secondary studies in prison.
In relation to the offence in question, Ms Lan sought to distinguish D3’s role from the others involved and invited me to adopt a lower starting point for D3, notwithstanding that the three defendants were involved in the same joint enterprise. She made the point that D3 arguably assumed a comparatively minor role in the joint enterprise and was not as involved as the others insofar as his contact with the mastermind WP1 and the exact role he played in execution of the robbery is concerned.
It was further submitted by Ms Lan that D3 had, to some extent, withdrawn from the robbery in that he did not actually take out the extendable baton himself and was merely present when the others were taking their more active parts in the robbery. I shall deal with this aspect of Ms Lan’s submissions later.
Sentencing Guidelines
Charge 1
The guideline for sentencing robbery offences has been well established and is set out in the case of Mo Kwong Sang [1981] HKLR 610. A starting point of 5 years would be appropriate for a robbery where there was display of a knife or other dangerous weapons to the victim. If the robbery involved an invasion of private premises, including business premises, then a starting point of 6 years would be justified.
In this regard, whilst there is no dispute that the office was a private premises, it appears common ground amongst the parties that there were no acts of invasion by the defendants in the present case as the word is understood in the context of that aggravating factor of invasion of private premises.
Whilst the premises were undoubtedly of a private nature, it is clear from the Summary of Facts that the Robbers were invited and permitted to enter the Office and remained hidden inside a room therein before the robbery took place. As such, there had been no physical act of invasion as is typical in cases involving forcing in premises from the outside.
Having said that, I consider that the facts of the case indicates a more intricate and premeditated scheme, which involved the luring of the victim to the Office in which the Robbers had already laid ambush. I will deal with this aspect of the case below in further detail. In any event, the initial starting point applicable in this case would be one of 5 years.
Aggravating Factors
As made clear by Mr Zervos JA in HKSAR v Limbu Binod [2021] HKCA 1431 at paragraph 23, in deciding the appropriate starting point to be adopted, the court shall take into account aggravating factors or features that reflect the gravity of the offence and the culpability of the offender, such as the circumstances and location of the robbery, the target of the robbery, the degree of planning and execution involved, the level of force or violence, the extent of injuries sustained by and impact on a victim or victims, the nature and use of a weapon, the number of offenders, the use of clothing to disguise the identity of the offenders, and the items and property taken. The court also remarked that comparison with other cases may not be always meaningful as there would not be two cases exactly alike.
Indeed, in Limbu, the facts revealed a very bad case of robbery and the court there considered 13 years to be appropriate for an armed robbery committed by a gang of four men. That robbery was also well planned and executed, but what distinguishes that case from the present are the extent of the physical violence inflicted upon the victims of that case. In that case of Limbu, the limbs of the two victims were severely injured with a view to immobilising them. Those circumstances were evidently more severe as compared to ours.
In the present case, I consider the following features to be in aggravation of the seriousness of the robbery offence, hence requiring enhancement of sentence:
(i) The robbery involved a group of robbers who were all masked.
(ii) This was a well-planned and premeditated robbery as indicated by the different roles assigned to different robbers, the fact that plans were made for the Robbers to lay ambush before the victim’s arrival at the Office and the smooth getaway after the commission of the robbery which ensued with the arrangement of the light goods vehicle taking the Robbers all the way to the destination.
(iii) The Robbers targeted a female victim who was alone and lured her to the Office under the false pretence of a cryptocurrency trade. That said, I do accept that the three defendants in the present case might not have been involved in the earlier transactions that were conducted with the victim as part of the scheme to lure her to attend the Office on the day in question.
(iv) The Robbers intimidated and threatened the victim by displaying a knife, which is a lethal weapon, and a stun gun, albeit one which looked like a metal rod. Thus, notwithstanding that the victim did not suffer any actual physical harm, this nonetheless must have been a terrifying experience for her, in particular with the presence of a group of men inside the Office in which she was kept.
(v) Lastly, the amount stolen in this robbery, namely, HK$3.5 million, was significant and the money was never recovered.
Bearing in mind these aggravating features that I have just identified and at the same time taking into consideration all the mitigation advanced on behalf of the defendants, I consider it appropriate to enhance the starting point by 2 years, bringing the starting point for sentence to one of 7 years’ imprisonment.
The Submission in respect of Joint Enterprise
Ms Lan invited the court to adopt a different starting point for D3 on the basis that he had played a relatively minor role as compared to others.
I do not understand Ms Lan to be saying that the default position is not as described in the authorities, namely, that all participants who knowingly lent assistance to the advancement of a joint criminal enterprise should not receive a lesser sentence simply because their role was different from that of other participants (see HKSAR v Muhammad Rizwan and Others [2019] HKCA 643). In other words, it is accepted by Ms Lan that without more, the Robbers share equal culpability.
Nevertheless, Ms Lan maintains that the particular circumstances of this case suggest that a distinction should be drawn between D3 and the other Robbers in terms of their culpability, given the fact that D3 had not been in contact with the mastermind of the plan, and the fact that he did not brandish any weapon, including the extendable baton that he had, which he was initially supposed to use.
In this regard, Ms Lan drew my attention to the case of HKSAR v Man Siu Ming and Another, CACC 318/2011, with a view to making good her point that it is appropriate to distinguish between the roles of the participants in this joint enterprise. And upon a close reading of that case of Man Siu Ming, it in fact supports the general position that the starting point when sentencing persons involved in a joint enterprise crime is that generally no distinction is made between the participants based upon the role they played in the commission of the crime.
As explained in that judgment, that is simply:
“...a recognition that criminal activity that needs a number of persons for its successful execution will inevitably involve those persons in contributing differently to the successful execution of the enterprise. Moreover, their conviction of a joint enterprise crime means that they have been found to have known the purpose of the enterprise and to have willingly lent their support to it, intending by so doing to commit the offence or offences for which the joint enterprise was formed.”
The same can be said of the present case in which all three defendants pleaded guilty to the robbery offence committed by way of a joint enterprise.
Whilst a defendant’s culpability is greater when he takes up a more dominant role such as that of a mastermind or a ringleader, there is no evidence in this case which points to D1, D2, and D3 bearing such or similar roles or leading roles. That said, even accepting Ms Lan’s suggestion that D3 had never been in contact with WP1 or the mastermind, the mere fact that he was not made a point of contact alone does not suffice to lower D3’s culpability to an extent which warrants a departure from the starting point to be adopted for each of the defendants. This point has been consistently made by the courts, namely, that it takes a team to commit an offence such as the present case and everyone’s role is crucial to the success of the plan. As often said, a lookout is no less culpable than the rest of his cohort (see HKSAR v Chu Sau Chi and Others, CACC 294/2002).
For completeness’ sake, I should indicate that I do not accept that by simply not taking out his extendable baton, D3 had somehow ‘withdrawn’ from the robbery. The fact is he remained in the Office and continued to remain when the rest of the Robbers were taking part in the course of the robbery. As he admitted under caution, he was rewarded a not insignificant sum of HK$80,000 for the participation in this joint enterprise.
As such, I consider that it is appropriate to enhance the starting point of sentence to 7 years as I have just mentioned for all three defendants and no distinction ought to be made amongst the three of them.
Charge 2
The subject matter of Charge 2, namely 0.31 grammes of cannabis is not a large amount. There are no sentencing guidelines for possessing this quantity of cannabis and the ultimate sentence is a matter for the sentencing judge’s discretion. In the circumstances of this case, I consider that a fine of $1,000 as suggested by Ms Alva is sufficient for Charge 2. That is the fine imposed for Charge 2 upon D1’s guilty plea.
Discount for Guilty Plea
All the defendants made timely guilty pleas before the magistrate and I am therefore prepared to grant each of them the full one-third discount. As I have mentioned above, I have considered each and every point of mitigation submitted on their behalf and noting also that all three defendants have strong support from their family as is evident from the turnout of those in support of them in court today.
That said, the offence committed by the defendants in this case is undoubtedly a serious one. The robbery was an intricately planned and carefully executed one, perpetrated upon an innocent lady who was lured to the Office under the pretence of selling cryptocurrency. There are no further mitigating factors which are applicable to the present case.
In this regard, I note that all the defendants in this case are of relatively young age. However, as the Court of Appeal held in SJ v Ma Ping Wah [2000] 2 HKLRD 312 at 319G, “little account” can be given to the previously clear record of anyone who takes part in such robberies. It is also well settled that youth is a mitigating factor of little weight unless there is “extreme youth” (see also, for instance, HKSAR v Chong Chin Tong and Others [2023] HKCFI 1096). None of the defendants in this case can be said to be of extreme youth.
Accordingly, for Charge 1, upon giving the full one-third discount, the starting point of 7 years is reduced to 4 years and 8 months’ imprisonment for all defendants. For the 2nd charge of possession of dangerous drugs against D1, I will impose a fine of HK$1,000.
It gives me no pleasure to impose the sentence that I impose on these young defendants. This is undoubtedly a bitter lesson to take, but let this serve as a stark reminder that naivety and youth are no reason, less excuses, to commit serious crimes. And I urge the defendants, all three of them, to take this opportunity to reflect upon themselves and what they did. Hopefully, they will turn over a new leaf and keep their promises that they will strive to become law-abiding and responsible adults in the future.
D1, please stand up. You are sentenced to 4 years and 8 months’ imprisonment for the robbery count and a fine of HK$1,000 to be paid within 7 days from today for the 2nd charge.
D2 and D3, you will serve 4 years and 8 months’ imprisonment for the robbery offence.