HKSAR v. Wong Kai Chung

HCCC 53/2023

[2024] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 53 OF 2023

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty in the Eastern Magistrates’ Court on 27 February 2023 to a single Charge of Robbery, contrary to s.10(1)  and (2)  of the Theft Ordinance, Cap.210 and he was committed for sentence to the Court of First Instance.

2.The particulars of the charge avers that on 14 June, 1995, at Dao Heng Bank Ltd, Ground Floor, Nos. 46-48 Granville Rd, Tsim Sha Tsui, Kowloon, the defendant robbed CHEUNG Hoi-fan of cash $18,310 Hong Kong currency.

3.The Defendant comes before me today for sentence, having confirmed his plea and admission of the Summary of Facts.

The Facts

4.According to the summary of facts, at around 4:10pm on 14 June 1995, the Defendant, who was then wearing a cap and a pair of sunglasses, approached a female bank teller Madam CHEUNG Hoi-fan (PW1)  at a counter of the bank and put a gun-like object on the counter-table and pointed it at PW1.  He then fiercely declared to her, “Robbery, I want HK$50,000, hurry!”  Scared, PW1 took out from the drawer a bundle of banknotes amounting to HK$18,310 and handed the same to the defendant.  The alarm system was activated but the Defendant left and fled away.

5.On 22 December 2021, the Defendant surrendered himself to Tsim Sha Tsui police station, claiming he had robbed Dao Heng Bank in Tsim Sha Tsui with a toy gun in 1995.  He was thus arrested and cautioned.  In subsequent cautioned video recorded interview, the defendant gave details of how he committed the robbery and explained that he committed the offence in order to repay the debt from the financial company as he was indulged in gambling.  He surrendered to the police because he felt guilty for his wrongdoing over the past 20 years.

Mitigation

6.The defendant is 51 years old with a clear record.  He was 22 years old when he committed the present offence.  He was born and raised in Hong Kong and he was educated up to Form 3 level.  Defendant’s father passed away when he was only 6 and his mother raised up 10 children and passes away in 1997.  He had his second marriage in 2019 and they have no children.  The defendant has been working as a chef for over 30 years before he surrendered. 

7.In mitigation, Ms. Vivian Wong, counsel for the Defendant, stressed the fact that the Defendant surrendered himself at the police station.  He confessed to the police when there was no investigation linked to him in respect of the robbery and he pleaded guilty at the first opportunity.

8.After the robbery in 1995, no one was identified or arrested over the 26 years between 1995 and 2021.  The Defendant continued his normal life and his employment as a chef in Hong Kong before he surrendered.  He was able to travel freely in and out of Hong Kong and he was not on the wanted list.  The reasons for his surrender after 26 years were attributed to his own remorse with the encouragement from his wife and his religion.  For all these past years, the Defendant had lived in guilt and frustration.  He also took the misfortunes suffered by his family members such as deaths and strokes as a retribution to his sin and he has been blaming himself.  He was encouraged by his wife to shoulder the responsibility and surrendered to the police.

9.Ms. Wong submitted four mitigation letters written by the Defendant, his wife, his elder sister and a Chaplain of the CSD.

10.Regarding the offence, Ms. Wong emphasised that the defendant committed the robbery alone and the gun-like object that he put on the counter was actually a toy gun and not a genuine one.  It was not even loaded with BB pellets.  He just thought of getting in the bank to rob implusively. No one was injured.  The whole course of robbery was fast and there was no actual violence to the staff or customers.

11.Ms Wong cited R v Yu Tai Wing [1995] 1 HKC 837 where the Court of Appeal held that for robbery involving an imitation firearm, the starting point of sentence is 10 years’ imprisonment.

12.With regard to the voluntary surrender, Ms Wong relied on the fact that this case is not the usual case when the defendants were identified and being put on the wanted list or arrested then absconded and surrendered. On the contrary, the robber of this case was not identified and the police had no record of the defendant in connection with the case.

13.Citing HKSAR v Lam Hoi, CACC 105/2016, the Court of Appeal said surrender to the authorities can take a number of different forms, each of which maybe of a different mitigating value.  The form of surrender that had the greatest mitigating value is that which is accompanied by a confession by an offender of an offence not known to the police.  The next level would be where an offender confesses to the police in respect of a known offence which has not been linked to him.  

14.Ms. Wong submitted that the present case is similar to the middle level and deserves a higher mitigation value.

Consideration

15.In HKSAR v Chan Sau Lan, Becky [2018] HKCA 155, Macrae JA (as he then was)  held :

“… the courts have long determined that the robbery of jewellery and goldsmith shops (and, for that matter, banks)  are a particular scourge which must be met with condign punishment and severe deterrent sentences. Similarly, the paramount consideration in sentencing the use of real or imitation firearms in the course of such a robbery must be deterrence. We cannot ignore these public policy considerations in this particular case. Arming oneself with an imitation firearm in order to take the law into one’s own hands must be firmly discouraged. Quite apart from the consideration mentioned by the judge, which could lead to members of the public being put at risk by the police having to draw arms, it must be very frightening for anyone to have to stare down the barrel of a gun, which one would have to assume was real, during a robbery.”

16.In passing sentence, I judge that the use of firearms during a robbery, whether real or imitation, generated considerable fear in its victims and increased the danger of law enforcement officers resorting to their own firearms, thus placing members of the public at risk.

17.Whilst no distinction should be drawn between cases where genuine and imitation firearms were used but not discharged during a robbery of jewellery or goldsmith shop, or a bank, a single opportunist robber armed with an imitation firearm in a public place who inflicts no injury on his victim might warrant a starting point of 10 years’ imprisonment. (see R v Yu Tai Wing [1995] 1 HKC 837)

18.Over the years, the Court of Appeal has consistently adopted a starting point of 10 years for robbery involving the use of imitation firearms. For an offence of robbery with the use of imitation firearms, personal difficulty and/or financial hardship are not mitigating factors. (see SJ v LEE Chun-ho, Jeff [2010] 1 HKLRD 84)

19.I shall therefore also adopt 10 years’ imprisonment as the starting point for this case.

20.The Defendant pleaded guilty and he is entitled to the usual one-third reduction in sentence.  The sentence after discount will be 6 years and 8 months’ imprisonment.

21.Apart from the plea of guilty, another mitigating factor must be Defendant’s voluntary surrender to the authority after 26 years of the commission of the offence.  It must be borne in mind that he was neither a wanted nor an absconded person.  On the contrary, it is a case where his involvement or participation in the robbery may not otherwise have come to light but for his voluntary surrender and admission to the police. 

22.The Defendant first told the police under caution in the police station that he surrendered because he was indebted and he also felt guilty for the past years. He subsequently said in the video recorded interview under caution that he surrendered to the police in 2021 because he felt guilty for his wrong-doings over the past 20 years.  Ms. Wong confirmed with her instruction from the Defendant that the surrender had nothing to do with the debts adding that if he really wanted to avoid the debts, he could have travelled freely out of Hong Kong and would not need to hide inside the prison.  In the end, I decide to give the defendant’s the benefit of the doubt and accept that it was only out of his guilt feelings that he decided to surrender himself to the police.

23.The surrender of those who got away but decided to face music was obviously something to be encouraged.

24.In HKSAR v Ngo Van Nam [2016] 5 HKC 231, Yeung VP said:

“ We accept that in individual cases where a conscience-stricken defendant voluntarily surrendered to the authorities and admitted the offences despite a total lack of evidence against him, the court could grant him a sentence discount more than one-third for such exceptional remorse.”

25.The Defendant is obviously conscience-stricken for all these 26 years and although he was never suspected or wanted by the police, he still decided to surrender to the authority and confessed to the crime to clear his chest which must be encouraged.

Order

26.I take into account the background of the case and the background of the defendant, the mitigation put forward, the long lapse of the time in between and his courage to face the music and shoulder his responsibility albeit there was no evidence linked him to the case, in addition to the one-third discount, I decide to further reduce the sentence by 8 months ( an equivalent to 12 months’ reduction from the starting point)  to 6 years imprisonment.

Ms. Claudia Ko, Senior Public Prosecutor of the Department of Justice, for HKSAR

Ms. Vivian W.M. Wong, instructed by Tsang, Chan & Woo Solicitors & Notaries, assigned by DLA, for the accused