COURT: The two defendants pleaded guilty before a magistrate to a joint charge of robbery and were committed before me for sentence. Subsequently, the prosecution filed an amended charge which contained minor amendments. There are also minor amendments to the Summary of Facts. Today, both defendants pleaded guilty to the amended charge and admitted the amended parts of the Summary of Facts. They were convicted on the amended charge. In sentencing, I take into account the whole circumstances of the case, including its nature and facts, personal background of the defendants and mitigation put forward on their behalf.
The facts of the case may be summarised as follows.
The persons robbed in this case were Mr Ng and Mr Ho. They operated a money exchange business together. In the evening on 21 November 2018, for the purpose of an exchange transaction, they together with a man and a woman, went to a hotel room to meet their clients. For this transaction, Mr Ng carried a bag containing $2.8 million in cash.
When they arrived outside the room and knocked on the door, a South Asian man opened the door and let them in. As soon as they stepped into the room, some other people rushed in from the rear staircase.
Mr Ng felt two or three blows of a fist-like object onto the back of his head and someone pushed him from behind. Then a knife was placed at his neck and a man said, “Don’t move! Hands up!” In response, Mr Ng raised his hands and someone used adhesive tapes to tie his hands and feet. His mouth was blocked as well. He was then pressed onto the floor facing the ground.
Mr Ho was also threatened. A man in dark hood pointed a 30-centimetre long military knife at his face and said to him, “Phone.” Mr Ho then gave his mobile phone to that person. The man then demanded him to take off his watch and Mr Ho gave his watch to him. The man tied up his hands with cloth bands and covered his mouth and nose with adhesive tapes. Mr Ho was forced to squat down. Mr Ho saw four robbers. When the robbers fled, they turned off the light.
The incident lasted about 3 minutes. Several minutes later, the two victims and the two persons who accompanied them were able to release themselves and made a report to the police. Mr Ng was robbed of cash of $2.8 million and a GPS tracker. Mr Ho was robbed of his mobile phone and watch.
D1 was arrested at his home on 27 November 2018, a few days after the incident. In the video-recorded interview, D1 did not admit having participated in the robbery. He said, inter alia, that he had been unemployed for eight months and the items seized from his home and relatives were bought by him.
Earlier, when police visited the home of the grandparents of D1, they found some gold items as well as a lot of clothing, some of which were bought on the day. D1 said under caution that the gold items found were bought by him and he had given money to his sister to buy clothing.
In the iPhone of D1’s sister, there were photographs depicting D1 and family members flaunting a large pile of cash in the denomination of $500 and D1 flaunting stacks of $1,000 and $500 bank notes. As regards the money shown in the photographs, D1 said he had lied to his family members about the source of the money.
D2 was arrested a few days later, on 30 November, at his home. In his safe, items including the followings were found: Cash in the sum of $215,000 and several gold items. Upon arrest, D2 said under caution that a man called Yesin asked him to meet at a hotel and there he was told that they were to commit robbery and he would play the role of lookout for a reward.
In a subsequent video-recorded interview, D2 made statements under caution which include the followings:
(1) On the day of the robbery, a man called Yesin asked him to a meeting and said they needed guys.
(2) As a result, he and another man went to the hotel and inside the room he met five other men.
(3) Yesin said the boys would do something and promised him a reward of at least $50,000 for keeping watch.
(4) Yesin provided other people with weapons like machete and watermelon knives and said the knives will be used to scare people to rob.
(5) After the robbery, he and D1 ran away by taking a taxi.
(6) They then waited for Yesin and received money from him.
(7) He, that is D2, received $300,000, and
(8) He spent some of the money to buy gold and kept the rest in the safe.
Now, D1 is single, 26 years of age at the time of the offence. He received education up to Form 1 and was unemployed at the time of the offence. He had been living with his family.
He did not have a clear record. In 2017, he was convicted for the offences of criminal damage and common assault and was sentenced to DATC. This was the only conviction of D1 before he committed the present offence. He committed further offences after he had been arrested for the present offence but released in May 2019 when the prosecution decided to withdraw the charge against him. In September 2019, he was arrested for a wounding case and later convicted for the offence of wounding and sentenced to 3 months’ imprisonment. In 2021, he was again convicted for the offence of wounding and sentenced to 5 months’ imprisonment. In 2021, he was convicted for the offences of theft and burglary and was sentenced to a total of 33 months’ imprisonment.
D2 is now 28 years of age. He received education up to Form 2 and had worked as a room attendant. Prior to this case, in 2016 and 2017, he was convicted twice for theft, for both of which a fine was imposed. Earlier in 2015, for a conviction of possession of dangerous drugs, he was sentenced to 4 months’ imprisonment suspended for 2 years. The suspended sentence was not activated when he was convicted in the theft cases.
As in the case of D1, the charge against D2 in this case was withdrawn in May 2019. After he had been released, he committed a further offence of robbery and was sentenced to an imprisonment term of 4 years and 8 months.
In mitigation for D1, learned counsel Mr Michael Arthur asked the court to take into account that D1 pleaded guilty at the earliest opportunity. He stressed that D1 was only 21 years old when he committed the offence and he is now full of remorse. Mr Arthur also stressed that D1 was not the mastermind and he had just been persuaded to participate for a reward of $50,000. Mr Arthur asked the court to accept that D1 did not participate in the actual attack of any of the victims. Mr Arthur asked the court to take into account that whilst there was prior planning in this robbery, D1 performed his role in an unsophisticated and amateurish manner, as indicated by the fact that he left his identity card behind, let himself be shot by CCTV and left his DNA at the scene. The defence produced a letter written by D1 in which he expressed remorse.
In mitigation for D2, learned counsel Mr Hui put forward the main points:
(1) D2 made confession as soon as he was arrested.
(2) He pleaded guilty at the committal stage.
(3) Even though the victims were trapped to the scene, D2 was not involved in this part of the operation.
(4) There is no evidence that D2 had used force on any of the victims.
(5) There was substantial delay in prosecution, which was not a result of any fault of D2.
(6) Despite D2 had committed further offences after his release upon the said withdrawal of the charge, while he was remanded he had deep reflection and is determined to turn a new leaf.
The defence also produced a letter from D2 in which he expressed remorse. The defence also informed the court that the father of D2 is now in terminal stage of his life.
In sentencing, I take into account the factors for consideration as stated in the case of Mo Kwong Sang v R [1981] HKLR 610. In addition, I have had regard to cases such as SJ v Ma Ping Wah, HKSAR v Ting Chiu [2003] 3 HKLRD 378, SJ v Li Man Biu, CAAR 4/2000, HKSAR v Man Siu Ming, CACC 318/2011 and HKSAR v Lai Kam Tong [2005] 1 HKC 232. I have also had regard to cases submitted by parties, including HKSAR v Singh Ajaypal & others, HCCC 125/2023, which Mr Arthur produced in court today.
The robbery was clearly premeditated and those who planned this unlawful operation must have targeted on something substantial. It defies common sense to start to think that it was mere coincidence that the victims have a lot of money on them. They must have a good idea where the victim would be. They waited at the rear staircase of the hotel and rushed into the room as soon as the victims were entering. Both Mr Arthur and Mr Hui did not seek to argue that this was not a trap. What they emphasised is that neither of these two defendants took part in this part of the operation, in particular in designing the plan.
There were several robbers, probably seven. Some of them were armed with lethal weapons. Once inside the room, they applied force on the victims and subjected them to fear by producing the weapons to them. They tied up and gagged the victims. They ransacked the bag of the victim.
All of the robbers wore masks and no facial identification is available. However, as there is photograph showing D1 lying on a bed that resembled the bed in the same hotel, and also that DNA of each of the two defendants was found on separate cigarette butt inside the hotel room and in the light that there is no contrary evidence, I am sure both D1 and D2 had entered the room during the robbery.
I reject the assertion of D2 if he meant his role was merely that of a lookout and was not inside the room.
There is nothing in the evidence which shows that what exactly D1 and D2 had done in the course of the robbery. There is no direct and concrete evidence that either of the two defendants was himself equipped with a weapon. However, even if they were not, it must have been obvious to each of them that his partners in this joint enterprise did. In a case like this, actual use of the weapons must be within reasonable contemplation of any of the culprits.
In any case, as both defendant were inside the room and as there is no contrary evidence, I am sure that each of them witnessed what happened to the victims. They must have actively participated in this joint enterprise of robbery.
Force was applied to the victims. Fortunately, there is no evidence that either of them suffered serious injuries. That said, judging from what had been done on them, it is quite impossible that they did not suffer any degree of harm. In addition, despite the robbers did not use the weapons to actually harm any of the victims, the display of weapons must have subjected the victim to severe fear.
That said, as both counsel stressed, the incident did not last long.
Both defendants engaged in the robbery in the above circumstances until its completion and I can draw the inference that each of them has a share of the proceeds which was substantial.
Right at the beginning of the robbery, Mr Ng was hit by blows of a fist-like object on the back of his head. This act aimed at the vulnerable part of the body of a person. There is no evidence that it was either D1 or D2 who did it. Whilst it may likely be the case, the evidence is not so strong that I can conclude that it was part of the plan and the defendant must have realised that this dangerous act would happen.
There was another dangerous act. The mouth and nose of Mr Ho were covered with adhesive tape. I find this dangerous act done in the presence of the two defendants.
This was a case of joint enterprise in committing a robbery. As regards D1, apart from the general circumstances as I have just described and that he had taken part in the robbery, there is nothing to show the role he played and what he actually did. It follows that there is no basis to sentence him as the mastermind or a robber playing the leading role.
As regard D2, I take into account what he said under caution. I consider his sentence on the basis that he was not the mastermind, that he was recruited at a relatively late stage to take part, and he only came to know on the very day that he was to engage in a robbery. Notwithstanding that his involvement started relatively late, D2 decided to continue his participation and lent his assistance. He joined the illegal operation knowing that some of the culprits were equipped with knives. In the course of the robbery, he saw the use of weapons and what happened to the victims.
The victims were lured to the scene, but I accept that neither defendant had participated in the detailed planning.
In all the circumstances, I do not think that there is sufficient material before me which justifies a distinction of culpability between D1 and D2. In my judgment, a notional starting point after trial of 8 years is called for and only this level of sentence is sufficient to reflect the seriousness of the case.
D1 has criminal convictions for theft and burglary as well as for offences involving unlawful use of force. However, the dishonesty offences were committed after the present offence. In the circumstances, I do not treat the record as an aggravating factor.
As regards D2, prior to this case he had been convicted twice for shoplifting. The previous offences were relatively minor and I do not think enhancement by reason of this previous record is warranted.
The defendants pleaded guilty before a magistrate and therefore each of them is entitled to a one-third discount.
Mr Hui for D2 asked for further discount on the ground of delay. Today, the prosecution produced a chronology of events the content of which is not in dispute. The chronology reveals the following salient points:
(1) D2 was arrested on 30 November 2018, about nine days after the incident;
(2) on the same day, he was charged with a charge of robbery;
(3) there were court proceedings which are not subject to the assertion of delay;
(4) on 27 May 2019, the charge was withdrawn upon legal advice and costs were granted to the defendants. The reason was for the customs to investigate into a possible money laundering;
(5) on 18 October 2021, two years later, customs reported that there was insufficient evidence to substantiate any money laundering contravention;
(6) police sought legal advice again on 8 November 2021;
(7) on 3 October 2022, 11 months later, there was further advice recommending to charge D1 and D2 jointly with one charge of robbery;
(8) on 31 October 2022, D1 and D2 were arrested again, both of them were in custody at that time; and
(9) the court proceedings resumed on 11 November 2022 and thereafter there is no allegation that there was any undue delay.
I accept there was a delay. There is nothing to indicate that the delay has been caused by the defendant. The delay on the face was quite substantial. It was for investigation of a possible criminal offence. As the charge against D2 was once withdrawn, it is possible that D2 had been led to the expectation that no further prosecution would be proceeded against him.
However, there is one thing I cannot ignore. That is, during the material period, D2 did not seek to rehabilitate himself but instead committed a further offence of robbery for which he was sentenced to a substantial term of imprisonment. I do not think the delay had resulted in significant stress for D2 or left him in uncertain suspense to a significant degree.
Having considered the whole of relevant circumstances and having regard to cases cited by parties as well as HKSAR v Chiu Chi Wing, CACC 243/2012, in which the Western Australia case of Scook v R was quoted, I do not consider it justified to let D2 have a further discount for the delay.
Mr Arthur did not raise the issue of delay for D1, though D1 was in similar situation. It may be a sensible course to take. For similar reasons, I do not think any further discount for D1 on this matter is justified.
Having consider the whole circumstances, including mitigation put forward ably on their behalf, I am of the view that one-third is the extent of discount each defendant is entitled to.
For the reasons I have mentioned, 1st defendant, I sentence you to an immediate imprisonment term of 5 years and 4 months and 2nd defendant, I sentence you to an immediate imprisonment term also of 5 years and 4 months.