CRIMINAL CASE NO. 148 OF 2010
COURT: Li Wai and Choi Hung, you have been committed for sentence by a magistrate on three charges related to two knifepoint robberies of walkers on a popular hiking trail in Braemar Hill called Sir Cecil’s Ride.
The three charges have been sent to this court for sentence, and though they are not set out chronologically on the charge sheet, the proper date order is Charge 2, Charge 3 and then Charge 1, and to understand the sequence of events properly, it is best to consider them in that order.
The two of you are local Hong Kong residents, and according to your admissions to the police, you met in a drug rehabilitation centre in 2009, and some time thereafter you agreed to commit robberies in this relatively isolated area.
Starting with Charge 2, in the afternoon of 9 August 2009, the two of you attacked a couple walking along the catchwater at Sir Cecil’s Ride. D2, you suddenly appeared from the bushes and pulled the male, and when the female tried to intervene, using her hiking stick, you pulled both of them into the bushes. You, D1, then appeared brandishing a knife, and the two victims were taken further into the bushes and away from the safety of the path. D1, you pressed the knife against the male’s back and warned him.
The victims were ordered to surrender their belongings, which amounted to cash, a mobile phone and an ATM card, together valued at $2,800.
Police recovered the knife in the vicinity of the robbery.
Charge 3. Two days later, also in the afternoon, you repeated this conduct, as the facts of Charge 3 show.
A 62-year-old man and his young grandson were walking along Sir Cecil’s Ride when they were suddenly faced by the two of you. D1, you were brandishing a knife, no doubt obtained since the previous robbery, and you, D2, were holding a broken glass bottle. You said you were from the mainland. You said you intended to rob these two, and threatened them with the weapons, holding them close to these victims, whom you escorted off the relative safety of the path into nearby bushes.
The grandfather surrendered some money, his mobile phone, and watch, together worth just over $2,000. You told the two of them to wait before reporting, though extraordinarily, it appears that the report was not made for two days.
Charge 1. The police, responding to reports of robbery in the area, set up an ambush at Sir Cecil’s Ride on 17 October, and at about the same time in the afternoon as the two robberies in Charges 2 and 3, they came across the two of you loitering in the undergrowth. D1, you were seen to be in possession of a knife. That is the offence giving rise to Charge 1. The police managed to catch you, D1, at the time, and to recover the knife; but D2, you were arrested a couple of days later, still in possession of the phone which had been stolen in the first of the two robberies, Charge 2.
In sentencing you for these robberies, I must first say that they are to be regarded as a series of offences of similar character, and that although individual sentences are to be imposed for each offence, the court must nevertheless have regard to what is a proper overall sentence for your criminal conduct. That is, the repeated offending is not to be ignored, but the sentences which I shall impose will be ordered to overlap in order to achieve the proper totality.
I have received submissions on behalf of each of you today as to the issue of totality of sentence, and it is a factor which I bear in mind.
The gravity of these crimes is to be found in the fact that you armed yourselves with dangerous weapons in order to terrorise your victims into submission. You acted as a team working together to frighten and to reduce the possibility of effective resistance. These attacks must have been extremely frightening. You bolstered your threats in one of the robberies by saying you were mainlanders, as if to say to your victims that you were desperate men willing to resort to extreme violence.
Furthermore, these were not momentary attacks like the snatch of a handbag or a neck chain. They were prolonged so that the victims would be frightened into submission, as you plainly intended. You approached your victims out of the bushes, suddenly, thereby giving them no time to flee. In the first robbery, a knife was held to the man’s back. In the second robbery, one of you was holding a knife, the other a broken bottle, close to the victims.
The risks posed by the use of dangerous weapons in the course of robberies are obvious. If the victims resist - for example, the wife to protect her husband or the grandfather to protect the little boy - such weapons may be used even inadvertently with devastating results. Thus the use of such weapons in the course of a robbery is a serious aggravation.
From the Admitted Facts and the circumstances, indeed the overwhelming inference is that the use of the weapons was contemplated by both of you as part of the joint enterprise, and you bear equal responsibility for their use on each occasion.
It has been pointed out in submissions this morning that the Court of Appeal has previously said that the fact that an attack is on a hiker is not to be regarded as an aggravation of the offence of robbery. That is in a case called Ting Chu in 2003. Of course, hikers are more vulnerable than others if they are in isolated areas, but the essential fact of the offence is the robbery itself, and it is not right to set up a special class of persons in respect of whom greater sentences should be imposed unless there is a particular reason.
Turning to the mitigation, D1, you are 39. You have been a resident of Hong Kong since 2002, and you have a clear record. I bear that in mind. You have a drug addiction, I am told, but that has not led you to the courts. I note your personal circumstances as explained to me.
D2, you are 58. You do have a criminal record, mainly relating to drugs. There is nothing in that record which aggravates your position now. I have regard to the personal circumstances explained to me here today.
In both your cases, the effective mitigation comes from the pleas of guilty which you entered in respect of these offences. It leads, as you have been told, to the court discounting sentence by one-third.
I have been referred to a number of previous cases dealing with the appropriate sentence for robbery. They are largely decisions on their own facts. That is to say they are based on the circumstances that related to the case in question. The leading authority which governs the approach that must be taken to sentencing cases such as this is one called Mo Kwong Sang from 1981.
Dealing first with the offences of robbery, I must first determine the appropriate starting point for sentence in each of your cases before applying the discounts to which you are entitled by reason of your mitigation.
In my judgment, the circumstances of these robberies to which I have referred already, and in particular the use of dangerous weapons in the course of robberies, should lead to a sentence of 5 years’ imprisonment in each case before the discount for mitigation.
Having regard to the mitigation available, I will reduce those terms by one-third to 3 years and 4 months’ imprisonment in each of your cases, and that is the term I impose on Charge 2.
Although these offences of robbery were separate and distinct, I judge that it would not be right, for reasons that I have earlier given, to order the sentences to run wholly consecutively, but neither would it be right to disregard the fact that you persisted in this grave misconduct.
Accordingly, I direct, so far as Charge 3 is concerned, in each of your cases the sentence for robbery shall be 3 years and 4 months’ imprisonment, of which 2 years and 2 months is to run consecutively to the term on Charge 2, making a total of 5 years 6 months’ imprisonment, and the balance, namely 1 year 2 months, will run concurrently.
As to Charge 1, I shall treat this as part and parcel of the robberies, even though it was an offence committed on a separate day. I shall not deal with the offence as if it were an incomplete or attempted robbery or a conspiracy to robbery.
I have regard to the fact that the maximum sentence on indictment is 3 years’ imprisonment, and in the circumstances, given your plea of guilty, D1, I shall impose a sentence of 6 months’ imprisonment and direct that term to run concurrently to the sentences imposed on Charges 2 and 3.
Thus in each of your cases, the term of imprisonment which I impose upon you is one of 5½ years.
Application for leave to appeal against sentence dismissed. Please refer to CACC225/2010 dated 20 January 2011