COURT: The defendant was charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210. He pleaded guilty at the committal proceedings on 28 November 2022 in the Magistrates’ Court.
It is alleged that he on 23 December 2019, at Lee Hing Goldsmith & Jewellery Shop, located at No. 353 Shanghai Street, Yau Ma Tei, Kowloon, together with five other persons, namely Pun Lokendra Bahadur, Manpreet Singh, Sandeep Singh and two other unknown persons, robbed a Mr Choi, the owner of the shop, of 584 pieces of gold ornaments, which were worth about HK$1.77 million. The robbery was captured by the CCTV of the shop.
Factual Background
The facts as admitted by the defendant are these:
On 23 December 2019, at around 12.11 pm, when the two owners of the jewellery shop - a Mr Choi and Mrs Choi were inside the shop, six masked men, including the defendant, armed with knives and hammers entered the shop.
One of the masked men pointed a knife at the owners, whilst his accomplices smashed the glass display cases and grabbed some gold ornaments therein. The robbery lasted about one minute, and the robbers fled towards Tsim Sha Tsui. None of the owners of the shop suffered any injury.
Upon checking, a total of 584 pieces of gold ornaments, with an estimated value of about HK$1.77 million, were found stolen from the shop.
Upon examination, the defendant’s DNA was found on a surgical mask seized at the rear lane near the shop.
One of the robbers, Manpreet Singh (one of the co-accused named in the charge) was later arrested on 25 February 2020. He pleaded guilty and turned prosecution. According to him:-
(1) He lived with the defendant at the time of the offence.
(2) He agreed to rob as suggested by an Indian friend called “Singh”.
(3) At about noon on 23 December 2019, he, the defendant, Sandeep Singh met up in a park in Yau Mai Tei.
(4) The three of them joined three other Nepalese, at about 12.10 pm that day.
(5) The six of them then went and robbed the shop together.
The defendant was arrested on 16 July 2021. Two video-recorded interviews were taken from him, and he made the following admissions under caution:-
(1) He lived with Manpreet Singh, which he called “Manu”.
(2) On 23 December 2019, Manu asked him to go to Jordan, where they met up with “BaBa” (the other co-accused, Sandeep Singh) and then joined three other Nepalese.
(3) The group then went to a goldsmith shop in Yau Ma Tei.
(4) There, they damaged the shop and taken some gold ornaments.
(5) He agreed that he had been to the goldsmith shop and left with the other five persons afterwards.
(6) He said someone gave him the mask, gloves and a jacket with hood for him to wear at the time and he was asked to dispose of the items taken from the shop after the offence.
(7) He identified himself in the CCTV still photographs.
(8) He said he had no idea how the gold ornaments were disposed of after the robbery.
The CCTV indeed confirmed the defendant’s presence at the robbery and captured him breaking the glass display window inside the jewellery shop.
The Defendant’s Background
The defendant is now 28 years old. He was born in India and received education up to diploma level in India.
He legally entered Hong Kong in 2018 as a visitor before seeking political asylum, making him a Form 8 holder with no fixed abode in Hong Kong. He has indeed no relatives in Hong Kong and all his family members are in India.
The defendant has no employment history in Hong Kong. At the time of the offence, he was unemployed and had been receiving government assistance for asylum seekers.
He has one previous conviction for the offence of breach of condition of stay, for which he was sentenced in May 2021 to 2 months’ imprisonment.
Mitigation
The defendant’s previous counsel, Mr Khosa (assigned by Legal Aid Department to represent him since the very beginning of these proceedings as early as in February 2023) had filed a written mitigation submission dated 6 December 2024, before the hearing originally scheduled for 9 December 2024, which was however, adjourned because of the defendant’s sudden hospitalisation as a result of a traffic accident said to occur the night before that hearing. When the case was last brought up again on 5 March 2025, the defendant, at very short notice, discharged his legal aid funded legal team and changed his representation to a private firm of solicitors, Messrs B Manek & Co. That necessitated another adjournment, and his bail, originally granted on 6 May 2024 was revoked by me at that hearing.
His new counsel, Mr Connelly, appears for him today and has confirmed that he would rely on what has been advanced by Mr Khosa on the defendant’s behalf in his written mitigation. Although no further written mitigation has been filed by Mr Connelly, he has, today, supplemented by way of oral address in his mitigation on behalf of the defendant.
In essence, the court is invited to consider the fact that there is no evidence that the defendant was in possession of or used a knife in the course of the robbery. That said, there is no dispute that, given the basis of the robbery charge is one of joint enterprise, as a matter of principle, the defendant would be equally responsible if others involved in the same robbery used knives in the commission of that offence.
It is also submitted in mitigation that the defendant had tried his best to assist the authority by agreeing to attend ID parades. At an early stage of the present proceedings after the case was adjourned back in 2023, the court was informed that the defendant has provided non-prejudicial statement to the police. An arrangement was then being made for ID parade to be conducted. This has been confirmed today by the prosecution and accepted by the defendant.
However, after a series of failed attempts to hold ID parade, the police eventually decided to conduct a photo
identification parade, which turned out to be also in vain as the defendant claimed that he was unable to identify anyone there because the photos were not current, and it was difficult for him to make any identification therefrom.
It is suggested that the defendant had done his best, and he could not be faulted for the failed photo ID parade, that the result might have been different if a live identification parade or a confrontation was done and that it was not the defendant’s fault that the police decided not to hold a live identification parade, or indeed, a confrontation.
Praying in aid what the Court of Appeal said in HKSAR v Lo Sze Tung Stephanie [2018] HKCA 421, it is submitted on the defendant’s behalf that, even if his assistance to the police turned out to be unsuccessful, his attempt was, however, genuine and a discount ought to be given to him to encourage others to do so as a matter of policy.
Applicable Legal Principles
It is well established that in cases of joint criminal enterprise, an offender who participated should not receive a lesser sentence simply because his or her role was different from that of other participants, see HKSAR v Muhammad Rizwan and others [2019] HKCA 643. As a matter of general principle, all participants in the joint enterprise share equal culpability for the offence.
For armed robberies, the sentencing guidelines are well-settled and have been set out in the case of R v Mo Kwong Sang [1981] HKLR 610:-
(1) For an ordinary robbery involving the display of a knife or other dangerous weapon to the victim, a starting point of 5 years would be appropriate.
(2) If the robbery was an invasion of private business premises, then a higher starting point of 6 years would be appropriate.
(3) If any physical violence is used on any of the victims, for example, tying them up, a sentence of 7 years should be considered.
(4) If other aggravating factors were present, such as the presence of more than one person in a group of robbers and threats made to victims, then the sentence should be increased accordingly.
Recently, in HKSAR v Lam Man Chung [2024] HKCA 493, the acting Chief Judge of High Court, Mr Justice Macrae, in deciding a leave application, dealt with a conspiracy to rob a high street jewellery shop with a machete and sledgehammer by a group of masked men in broad daylight and considered a starting point, on the fact of that case, of 10 years’ imprisonment to be appropriate.
His Lordship explained in that judgment at paragraph 23 that “sentences for the robbery of...goldsmith or jewellery shops must carry with a significant element of public deterrence, because of the large amount of cash and valuables being carried on the premises, which offers significant temptation to potential robbers”.
His Lordship went on to refer to what Mr Justice Zervos, Justice of Appeal, said in Limbo Binod [2021] HKCA 1431 at paragraph 27:
“...In robbery cases, a sentencing court when assessing the starting point to be adopted will 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 item and property taken.”
In passing, reference was made by his Lordship Justice Macrae in Lam Man Chung of my earlier sentence of another co-accused involved in the same robbery, namely Pun Bahadur in respect of whom I adopted a starting point of 7 years. It was said by his Lordship that that starting point was too lenient in the circumstances of this case.
As accepted by the defence, the defendant’s status as a Form 8 holder itself is a separate aggravating factor for which an enhancement of sentence before discount for any mitigating factors is warranted. Relying on HKSAR v Sahil Kumar [2023] HKCA 102, Mr Connelly urged me to adopt the one-year enhancement as suggested by Mr Khosa in his written mitigation. That said, I do note that in Sahil Kumar at paragraph 30 of the judgment, the Court of Appeal had this to say:
“The only issue which has engaged us is whether the enhancement of 1 year for A1’s status as a Form 8 recognizance holder has been counted twice in the two sentences passed upon him. There is a superficial attraction to the notion that this factor has been double-counted, until one remembers that the sentencing judge in both cases was not only the same judge, but a highly experienced one, who clearly, from her sentencing remarks, knew what she had said and why in the previous sentencing exercise. These were very serious robberies with lethal weapons, committed a mere 7 months apart, by someone who is not a citizen of Hong Kong but who has been permitted to remain at liberty on our streets under a Form 8 recognizance issued by the immigration authority, while his claim for asylum is processed. Had both offences been dealt with together by the same judge at the same time, we would not have interfered with a two-year enhancement for this factor. Indeed, as Ms Mok has pointed out, that was the precise enhancement adopted by the trial judge in Singh Gursevak for a single case of serious robbery with knives, such enhancement was not criticised on appeal.”
In HKSAR v Singh Gursevak [2019] 2 HKLRD 274, the Court of Appeal in considering that the enhancement of 2 years’ imprisonment for the defendant’s Form 8 holder status was not manifestly excessive, said this, at paragraphs 47 to 49 of the judgment:
“47. That robbery is a very serious offence is indisputable. That this particular manifestation of it was particularly serious and is also indisputable. So, what then of the impact of it on Hong Kong and its residents?
48. In the present case, the impact on the community is considerable. It goes well beyond the victim and his family and into the wider Hong Kong community. It affects people’s sense of security, especially those who are engaged in businesses similar to the victim’s. It affects the community’s attitudes to people of different ethnicities as they live side by side with them in a multicultural community. It creates anxiety and distrust within a community.
49. The reputational damage to a city which promotes itself as a tourist destination is obvious. But Hong Kong is more than just a city to visit. It is a home to many in the international business community and it seeks to attract more international businesses to set up here. In order to do that, it portrays itself as a safe city for people in which to do business and go about their daily lives. Nothing undermines that perception more than violent street crime.”
I would respectfully echo all those that were said by the Court of Appeal in that judgment. Nothing indeed undermines the perception more than these serious crimes involving violent robberies conducted on the street in broad daylight.
As mentioned earlier, I am also asked in mitigation to consider the defendant’s assistance to the authority and allow him some discount in sentence. Reliance was placed on the case of Lo Sze Tung Stephanie, where the Court of Appeal said at paragraph 49 in respect of a co-operating defendant whose assistance is “both limited and unfruitful”, that “notwithstanding that the assistance possessed these features a discount is given in order to encourage other offenders to similarly cooperate with our law enforcement agencies.”.
Reasons for Sentence
I now turn to the sentence of this defendant. As regards the circumstances of the commission of the robbery, the following aggravating features are present:-
The defendant participated in a premediated armed robbery targeting a goldsmith shop which involved a group of six robbers wearing masks to hide their identity.
The group of robbers, including the defendant, all displayed a readiness to use physical violence in broad daylight to their ends.
Even though no physical injuries were actually caused to either of the two owners of the shop in question, the facts as agreed by the defendant revealed that the two owners were threatened at knifepoint when their shop was being damaged, and properties were being taken.
The value of the stolen items is substantial, amounting to HK$1.77 million. As mentioned, in addition to the loss of the value from the stolen items, the shop also sustained substantial physical damage with glass display cases smashed and destroyed in the course of this robbery. The defendant as mentioned was caught by the CCTV to be involved in smashing the glass display window himself.
This robbery involved an abrasive invasion of a private business premise. In accordance with Mo Kwong Sang, I would adopt an initial starting point of 5 years for the nature of this armed robbery. There are a number of aggravating factors in this case. The robbery took place in a private business premise, which warrant an increase of the starting point by 1 year to 6 years’ imprisonment.
The fact that the robbery involved six robbers, all masked, require further enhancement of the starting point. The location of the robbery is also an aggravating feature that is present in this case. It is a goldsmith shop situated at a crowded area in Hong Kong, and the commission of the robbery at noon during or shortly before lunch hour, all aggravated the circumstances of the robbery. Further, a total of 584 pieces of gold ornaments estimated to value a total of HK$1.77 million were stolen. Considering all these aggravating factors as a whole, I find the appropriate starting point for the facts of this robbery to be 8 years.
Further, the defendant’s status as a Form 8 holder is a separate aggravating factor requiring an enhancement of sentence. I have duly considered what has been said on the defendant’s behalf by Mr Connelly today and the various cases discussed in my exchange with Mr Connelly, concerning this aspect of the case. I would adopt an enhancement of 18 months for this aggravating feature, namely the defendant’s status as a Form 8 holder. This will therefore bring the sentence before discount to 9 years and 6 months, that is 114 months. In passing, I note that when sentencing the other two co-accused, Manpreet Singh and Sandeep Singh on 1 March 2023, Madam Justice Toh adopted an overall starting point after aggravation of 10 years for those two co-accused (see HCCC 124/2021) ([2023] HKCFI 871).
In this connection, a point should be made to address any concern of possible disparity of sentence. As the Court of Appeal held in R v So Hung Lee [1986] 6 HKLR 1049:
“Where there was a disparity between sentences passed on the same occasion by the same judge...the sentence should be varied, only if, it could be shown that the judge had not properly apportioned the blame between the accused. Where different sentences were passed on different occasions by different judges on different accused for the same offence, then the only consideration would be whether the sentence passed on the appellant was appropriate.”
I consider the starting point adopted for this defendant reflects a proper apportionment of blame and is appropriate in all the circumstances of this case.
The defendant is entitled to a full one third discount because of his early guilty plea. For that, the sentence is reduced to 6 years and 4 months, that is 76 months.
Although he has provided a non-prejudicial statement to the police and has made attempts to help identify others involved, the alleged assistance has been confirmed to be of no practical value to the authority. This is because the defendant failed, at the end, to make any identification from the photo identity parade, which took place after a series of 10 failed attempts to hold the live ID parade.
However, I am prepared to reduce the sentence by 2 months to reflect the defendant’s attempt to provide a certain degree of assistance to the authority. His sentence is therefore reduced to 74 months.
Defendant, the overall sentence I impose on you is 6 years and 2 months, that is 74 months.