HKSAR v. Xie Binlong

HCCC 22/2024

[2025] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 22 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded not guilty to one charge of Robbery[1] before Magistrate Ms. Vivian Ho on 22 January 2024 and was committed on the same day to the Court of First Instance for trial. Before a trial date was fixed, the defendant’s legal representatives wrote on 6 March 2024 to inform the court that the defendant intended to plead guilty to the charge.

2.The defendant did eventually plead guilty, admitted to the summary of facts and was duly convicted before me.

3.Particulars of the charge are that the defendant on 14 March 2019, at “Sun Hai Jewellery Shop” (hereinafter as “the Shop”), No.125 Kweilin Street, Sham Shui Po, Kowloon, robbed TING Kam-yuen and LU Weiyan of 112 pieces of gold jewellery.

FACTS

4.The two victims named in the particulars were staff of the Shop.  At around 10:15am on 14 March, a masked man, later known to be the defendant, entered and took out a pistol-like object from his inner jacket pocket and declared robbery on them.  The defendant said not to call the police or he would kill someone, and told them to squat in the corner.

5.Ms. Wu was ordered to take out 3 trays of gold jewellery from a display cabinet, and the defendant put them into his sling bag.  The defendant told Ms. Wu to squat back down and then fled.  The robbery lasted about 3 minutes and was caught by CCTV cameras in the Shop.

6.A total of 112 pieces of gold jewellery (64 gold necklaces, 38 gold bracelets and 10 gold pendants) worth HK$1,336,609 in total were stolen.  Mr. Ting and Ms. Lu were not injured.

7.Through extensive investigative work, the police were able to trace the movement of the defendant from when he entered Hong Kong from the mainland via Lo Wu Control Point at 6:44am on the day of the robbery.  He was wearing a brown jacket at the time.  

8.At 9:15 to 9:22am, the defendant walked with a man whom the police later identified as CHAN Ling-kai (hereinafter as “CHAN”) along Yen Chow Street and entered Sham Shui Po MTR station.  

9.Between 9:35 and 10:10am, the two of them lingered near No. 38 Kweilin Street.  The defendant had changed into a black jacket by this time.

10.At 10:19am, the defendant, now wearing a cap and a facemask, entered the Shop alone, committed the robbery, came out at 10:22am.

11.One minute later at 10:23am, the defendant met up with CHAN who was waiting in a nearby rear lane.  The defendant passed the sling bag to CHAN who then walked away.  The defendant took off his black jacket, revealing his original brown jacket.

12.At 10:24am, CHAN walked along Yen Chow Street with the sling bag inside another checkered bag.  The defendant followed him from a distance.  

13.3 minutes later at 10:27am, they met up at and got into a train at Sham Shui Po MTR station, exited together at Cheung Sha Wan station at around 10:33am.

14.The defendant left Hong Kong via Shenzhen Bay Port at 12:29pm.  

15.Movement records confirmed that CHAN and the defendant entered Hong Kong via Lo Wu Terminal on 14 March 2019 at 6:38am and 6:44am respectively.  

16.As for CHAN, footages showed that he entered Sheung Shing House, Upper Ngau Tau Kok Estate with the checkered bag at 1:16pm on the same day.  He was also seen to enter Sheung Shing House with a suitcase at 1:54pm 5 days later on 19 March.  

17.CHAN’s brother lived at Room 112 of Sheung Shing House and the police located him there on 26 March.  Upon search, 64 pieces of jewellery stolen from the Shop (valued at HK$756,600 in total) were found inside a cloth bag wrapped inside a plastic bag placed on top of a cabinet inside the living room.

18.The defendant entered Hong Kong via China Ferry Terminal on 9 April 2023 (4 years after the robbery) and was arrested for the robbery.

PREVIOUS CONVICTIONS

19.The defendant had a clear record in Hong Kong.  

BACKGROUND AND MITIGATION

20.The defendant was born in mainland China in December 1976 and educated there up to lower secondary level.  He is 48 years old and single.  His mother passed away in 2021.  He used to live in Guangxi with his 89 years old father as his sole caretaker before his arrest.  Now that the defendant is in remand, his father lives alone.  He has 4 elder sisters and a younger brother 5 years his junior, but they had been out of reach for over 10 years.  The defendant used to work as a factory worker, but was a cleaner earing around RMB4,000 per month prior to his arrest.

21.The defendant wrote to express his remorse, claiming that CHAN had misled and deceived him into committing the offence.  His father is unwell and without anyone to look after, and he seeks leniency.  

22.Ms. Wong in her detailed written submissions told the court that the defendant had almost used up his savings when he shouldered the medical expenses for his mother’s surgeries in 2019.  He talked about that at a social occasion with his friend CHAN who then suggested that he could get some quick money by robbery.  At CHAN’s repeated request, the defendant gave in and agreed.  

23.The two of them travelled together to Hong Kong on 14 March 2019.  CHAN had given him a bag with clothes and the toy pistol inside.  CHAN brought the defendant to a jewellery shop in Sham Shui Po.  It was not yet opened.  They went to have breakfast and CHAN told the defendant what to do in the robbery.  The defendant followed his instructions and committed the offence alone.  

24.Ms. Wong invited the court to consider that the duration of the robbery was short, lasting merely 3 minutes; the defendant acted alone; no injury was inflicted; no property damaged; no violence used; no customers scared; and it was committed during daytime.  Ms. Wong submitted that this jewellery shop robbery is not the worst of its kind, and that the court should impose a sentence as lenient as possible so that the defendant can return home to look after his father.  

SENTENCING

25.The maximum sentence on conviction upon indictment for Robbery is life imprisonment.  

26.In HKSAR v Pau Lai Sing [2010] 3 HKLRD 233, the target of the robbery was also a jewellery shop.  There the Appellant pointed an imitation pistol at the staff and customers, smashed the glass showcase with a hammer and took 21 watches worth $594,600.  He pointed the imitation pistol, twice, at a police officer in pursuit, causing the officer to discharge his own firearm at the Appellant once.  

27.The Court of Appeal found that it was “a very bad case of its kind”, but found that the 18 years starting point adopted by the sentencing judge manifestly excessive.  The Court considered a line of cases and judged that in bank robberies and similar cases where imitation firearms were used, the normal starting point after trial is 12 to 15 years’ imprisonment, and decided that a more suitable starting point was 15 years in the Appellant’s case.  They recognized that such a high starting point is necessary for the important aggravating feature that, with the use of imitation firearm, law enforcement officers might have to resort to using their own weapons, thus exposing the public to grave danger.  

28.In the present case, there was no hammer used and no pointing of the imitation firearm at a police officer.  The value of the stolen watches were, however, much higher, and the robbery clearly involved an accomplice in CHAN.  I find that the overall circumstances of this robbery can arguably be said to be less serious than that in Pau Lai Sing.

29.Having said that, I find the following aggravating factors that are unique to our case.  Based on the movement records, the only reasonable inference is that the defendant came to Hong Kong for the specific purpose of committing the crime.  Although the defendant committed the robbery alone, it is clear that he had an accomplice in CHAN who handled the loot while the defendant made his way out of the jurisdiction as quickly as possible.  The robbery was premeditated and well planned, but for the meticulous investigation work of the police, the crime might have remained unsolved.  The value of the stolen property was over $1.3 million, with only $756,600 worth of jewellery recovered.

30.Having taken into consideration all the above, I will adopt a starting point of 14 years’ imprisonment.

31.As for mitigating factors, I find that the defendant’s previously clear record in Hong Kong counts for nothing given the seriousness of his crime.  There are no mitigating factors that would warrant a reduction in sentence other than his guilty plea.  

DISCOUNT FOR PLEA

32.According to HKSAR v Ngo Van Nam CACC 418/2014, if the defendant indicates to the Court or prosecution that he wishes to plead guilty after he has been committed to the Court of First Instance for trial, but up to and until dates are fixed for his trial by the Listing Judge, the appropriate discount for sentence from the starting point for sentence, subject to the overriding discretion of the judge in sentence, is 25%.  

33.The defendant is, therefore, given a 25% discount and is sentenced to 10 years 6 months’ imprisonment after plea.

Miss Angel YUEN, SPP of Department of Justice, for the Prosecution/ HKSAR

Ms. Vivian WONG, instructed by Messrs. Choy Yung & Co., assigned by D.L.A. for the defendant