HKSAR v. Xie Binlong

CACC 74/2025 [2026] HKCA 68

On appeal from [2025] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 74 OF 2025

(ON APPEAL FROM HCCC NO 22 OF 2024)

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BETWEEN

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J U D G M E N T

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1.The applicant was indicted on one count of robbery, alleging that on 14 March 2019 he stole 112 pieces of gold jewellery from a jewellery shop. On 26 March 2025, he pleaded guilty to the count before Douglas Yau J (the judge), after being committed to the High Court for trial but before trial dates were fixed. The judge adopted a starting point of 14 years’ imprisonment and sentenced him to 10 years and 6 months’ imprisonment after giving him a 25% discount for his late plea.

2.On 11 April 2025, the applicant filed a notice of application for leave to appeal against sentence (Form XI).  He appears in person at the leave hearing, having had his application for legal aid refused on 22 May 2025. 

The facts

3.In pleading guilty, the applicant agreed to a summary of facts that outlined the circumstances of the offence.[1]  At around 10:15 am on 14 March 2019, the applicant entered Sun Hai Jewellery Shop (the shop)  at No. 125 Kweilin Street in Sham Shui Po, wearing a facemask.  He produced a pistol-like object from his inner jacket pocket and declared a robbery at two staff members named Ting Kam Yuen (PW1)  and Lu Weiyan (PW2), warning them not to call the police or he would kill someone, and instructing them to squat in a corner.  He ordered PW2 to take three trays of gold jewellery from a display cabinet, which PW2 did.  He then placed the jewellery into his sling bag and told PW2 to squat back down before leaving the shop.  A total of 112 items of gold jewellery, valued at HK$1,336,609 were stolen.  During the robbery, no one was injured, and no customers were present.  A CCTV camera in the shop captured the incident, which lasted about three minutes.  

4.Following an extensive investigation, including the examination of immigration records and CCTV footage, the police traced the movements of the applicant and a man named Chan Ling Kai (Chan)  before and after the robbery.  In the early morning of 14 March 2019, they entered Hong Kong from the Mainland, with the applicant wearing a brown jacket.  Before the robbery, they were seen entering Sham Shui Po MTR station and lingering in the vicinity of the shop, by which time the applicant had changed into a black jacket.  During the robbery, the applicant entered the shop alone and took away the jewellery in his sling bag while wearing a cap, a facemask and a black jacket.  One minute after he left, he handed the sling bag to Chan, who was waiting in a nearby rear lane, and removed the black jacket, revealing the brown one he had worn earlier.  Chan then walked off with the sling bag inside a checkered bag, followed at a distance by the applicant.  They boarded a train at Sham Shui Po MTR station and alighted at Cheung Sha Wan MTR station.  That afternoon, the applicant departed Hong Kong, while Chan went to Sheung Shing House, Upper Ngau Tau Kok Estate, with the checkered bag and later also departed Hong Kong.  On 19 March 2019, Chan was seen entering Sheung Shing House again with a suitcase.  On 26 March 2019, the police searched the residence of Chan’s brother, Chan Ling Cheong, at Room 112, Sheung Shing House, where 64 items of the stolen jewellery valued at HK$756,600 were recovered.  Nearly four years after the robbery, the applicant was arrested when entering Hong Kong on 9 April 2023.

The sentence

5.The applicant was born in the Mainland and educated up to lower secondary level.  At the time of sentencing, he was 48 years old, single, and had a clear record.  After his mother’s death in 2021, he lived in Guangxi as the sole carer for his 89-year-old father, with his siblings having been out of contact for over a decade.  He had worked as a factory worker and, before his arrest, as a cleaner earning about RMB4,000 per month. 

6.In mitigation, the applicant asked for leniency, claiming that he had been misled and deceived by Chan into committing the offence, and that his ailing father had no one else to look after him.  Defence counsel submitted that the applicant had agreed to Chan’s repeated requests to commit the robbery for quick money, having nearly exhausted all his savings on his late mother’s medical expenses.  Counsel argued that, although the applicant carried out the robbery alone, he was acting on instructions from Chan, who travelled with him to Hong Kong on the day of the robbery, provided the clothes and toy pistol, and accompanied him to the shop before it opened.  Counsel also submitted that the case was not the worst of its kind: the robbery lasted only three minutes, was committed by a lone offender in daytime, caused no injury or property damage, involved no violence, and took place when no customers were present.[2]

7.In sentencing the applicant, the judge considered that the overall circumstances of this case were less serious than those in HKSAR v Pau Lai Sing[3], noting that, despite no hammer being used and the imitation firearm not being pointed at a police officer, the case involved an accomplice in Chan and a higher value of stolen property.  In this case, the judge identified several aggravating factors and adopted a starting point of 14 years’ imprisonment.  Based on the movement records, the judge inferred that the applicant had travelled to Hong Kong specifically to commit the offence.  The judge found that, although the applicant carried out the robbery alone, he had an accomplice in Chan who handled the stolen jewellery while he quickly fled the jurisdiction.  The judge also found that the robbery was premeditated and well-planned, and that it might have remained unsolved but for the meticulous police investigation.  He noted that, of the stolen jewellery valued over HK$1.3 million, only HK$756,600 was recovered.  Given the seriousness of the offence, he found no meaningful mitigation other than the applicant’s plea.  Applying HKSAR v Ngo Van Nam[4], the judge gave him a 25% discount, having regard to the late indication of his plea after committal but before the fixing of trial dates[5], resulting in a sentence of 10 years and 6 months’ imprisonment.

The grounds of appeal

8.The applicant made a series of complaints against his sentence in the Form XI, a written submission filed on 9 July 2025, and a written submission submitted during the hearing, that can be summarised as follows.  First, he contends that the judge wrongly sentenced him on the basis of an armed robbery involving a firearm, arguing that only a toy pistol was used, which could not cause injury and was provided by Chan.  Secondly, he complains that the judge erred in finding that the robbery was premeditated by him, asserting that the offence was instigated by Chan, who deceived him into committing it.  Thirdly, he argues that the sentence was excessive compared to the sentence passed on Chan[6], whom he alleges was the mastermind, and to the sentence imposed in HKSAR v Cai Man Koon[7]and other similar cases involving imitation firearms.  Fourthly, he seeks leniency as his father depends on his care, with his siblings long out of contact.

9.Mr Wayne Lee, for the respondent, submits that robbery of a jewellery shop involving an imitation firearm constitutes a serious aggravating feature, which can warrant a starting point of 12 to 15 years’ imprisonment in accordance with relevant authorities[8].

10.It is suggested in Mo Kwong-sang v The Queen[9] that the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon, not being a firearm, which he displayed to his victim, should normally be 5 years’ imprisonment.  However, that statement does not fully reflect the current sentencing approach for robbery involving a dangerous weapon, which will depend upon the nature of the weapon and the circumstances of the case.  For instance, in cases of robbery involving an imitation firearm, there is a line of authority suggesting that the proper starting point should be 10 years’ imprisonment.[10]  The case of Pau Lai Sing recognised thata higher starting point of12 to 15 years’ imprisonment could be adopted in such kinds of robbery[11]:

“The normal starting point, judging from other cases, is one of twelve to fifteen years, which is already much higher than the starting points of 5 to 7 years in other arm robberies (see R v Mo Kwong Sang [2982] HKLR 610). Indeed such a high starting point is adopted because of the important aggravating feature identified by the judge, namely that in a robbery involving the use of an imitation firearm, law enforcement officers might have to resort to and use their own weapons, thus exposing the public to grave danger.” (Emphasis added)

11.As Mr Lee argues, the applicant’s reliance on Cai Man Koon and other cases is not meaningful.  He notes that Cai Man Koon involved a different factual context, namely one count of robbery with the use of an imitation firearm and two counts of theft committed on separate occasions at different shops, with stolen property valued at around HK$600,000, and lacked aggravating factors present here, such as travelling to Hong Kong specifically to commit the offence.

12.The Court of Appeal has repeatedly emphasised that the issue on appeal is whether a fair and just sentence was imposed in the circumstances of the case, applying the relevant sentencing principles and guidelines, and that comparisons with other cases are of limited value: HKSAR v Limbu Binod [12]; HKSAR v Loua Cece [13].  In determining the appropriate starting point in robbery cases, guidance has been provided in Limbu Binod: 

“23. … 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 the 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 or property taken.”

13.In view of the overall circumstances, the judge properly identified several aggravating features reflecting both the gravity of the offence and the applicant’s culpability, which justified the starting point of 14 years’ imprisonment.  As Mr Lee rightly pointed out, the movement and CCTV evidence supported the judge’s findings and inference that the applicant’s sole purpose in visiting Hong Kong that day was to commit the robbery.  The applicant changed his outfit and wore a cap and facemask to disguise his identity before entering the shop.  He acted in concert with Chan by lingering in the vicinity beforehand and passing the stolen jewellery to Chan immediately afterwards, with Chan waiting nearby the shop.  It is evident that the robbery was premeditated and well-planned, rather than opportunistic.  

14.In addition to the factors highlighted by the respondent, it is noted that the jewellery shop was targeted in advance, and that the two shopkeepers were explicitly threatened by the applicant’s display of the imitation firearm, thereby being compelled to accede to his demands to squat down and hand over more than a hundred items of gold jewellery.  Of the stolen jewellery valued at over HK$1.3 million, more than half a million dollars’ worth of property was never recovered.  It is apparent that, absent the efforts of the police investigation, the case would likely have remained unsolved.  Given the multiple aggravating factors in the present case, the starting point of 14 years’ imprisonment cannot be faulted, and the overall sentence of 10 years and 6 months’ imprisonment is neither manifestly excessive nor wrong in principle.

15.Mr Lee further submits that the applicant’s claims that he was deceived and instructed by Chan to commit the robbery due to financial difficulties are mere assertions unsupported by evidence, and personal or financial hardship does not constitute mitigation for a serious offence of this kind: Secretary for Justice v Lee Chun Ho Jeef [14].  

16.In Chan’s case, Chan and his brother each faced one charge of handling stolen goods in relation to the stolen jewellery in this case.  Chan was arrested upon entering Hong Kong on 2 April 2019.  Chan claimed that the applicant (referred to as “Ah Lung” or “WP”)  was the mastermind and that he had merely helped to take the jewellery away.  On 26 August 2020, Chan was sentenced to 26 months’ imprisonment in the District Court upon his own plea.

Conclusion

17.The issue in this case is whether the starting point of 14 years’ imprisonment adopted by the judge was manifestly excessive. The judge carefully considered the full circumstances of the case and the applicant’s culpability.  He correctly found that the applicant had come specifically to Hong Kong from the Mainland to commit the robbery of a jewellery shop, which he had planned and executed with precision.  He claimed that Chan was the mastermind, who had cajoled him to commit the robbery.  However, he was the principal offender and the sole robber.  He disguised himself and arranged for Chan to act as a lookout and receive the stolen items immediately after the robbery

18.He then fled the jurisdiction, returning to the Mainland.  Although he used an imitation firearm, the victims believed it was real, and he threatened to kill them if they did not comply with his demands. The courts take a very serious view of robbery committed with the use of a firearm, including an imitation firearm, because such an offence can engender genuine fear and create a dangerous situation if the weapon is treated as real by the police or by members of the public.  For robberies of banks, jewellery shops and other establishments in possession of large amounts of cash or valuable items where the robber used an imitation firearm, the normal sentencing range is 12 to 15 years’ imprisonment: HKSAR v Man Siu Ming and Anor[15]. There are aggravating factors that were rightly taken into account which justified the sentence imposed, which, although on the high side, was not manifestly excessive. 

19.The application for leave to appeal against sentence is refused.

20.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Wayne Lee, PP, of Department of Justice, for the respondent

The applicant appeared in person