CRIMINAL CASE NO. 163 OF 2011
COURT: I am ready to provide my sentences now. In this case the 4th accused is charged on his own with a burglary that dates back to 2004, and with the three other accused with a robbery that took place on 17 June 2010.
The 4th accused pleaded not guilty to both offences but was convicted of both of them after trial. In respect of the other accused charged with the robbery count, the 1st and 2nd accused pleaded guilty on their arraignment. The 3rd accused pleaded not guilty and a voir dire was held on the admissibility of his video record of interview. When I ruled that interview admissible the 3rd accused changed his plea.
The 1st, 2nd and 3rd accused fall to be sentenced on Summaries of Fact which they have admitted and which are almost identical. The 4th accused will be sentenced on the evidence that came out at trial. However, in respect of the robbery count that evidence is little different from the evidence in the Summaries of Fact as much of the circumstances of the robbery were admitted by the defence.
The willingness of the 4th accused to narrow the issues and not require evidence to be adduced in proof of the robbery and burglary contributed significantly to a shortening of the trial and much saving of court time. For this the 4th accused is entitled to some discount of his sentences for both the robbery and burglary counts.
The robbery was a particularly unpleasant one. The house was occupied and the robbers appeared to know this or at least be prepared for it. They wore hoods and gloves and some carried knives. In the course of the robbery and in order to effect their criminal purpose, the robbers subjected the male and female occupants to actual force and the threat of further force.
A knife was employed to instil fear and as a consequence a cut was caused to the male occupant in the course of a struggle that ensued from the robbers’ efforts to subdue him. Both occupants were punched and tied up. One was also gagged and blindfolded whilst the other was just gagged. One of the robbers guarded the occupants whilst the other robbers ransacked the house. The robbery lasted about 30 to 45 minutes and must have been a terrifying ordeal for the victims.
After the robbers left, a knife and chopper were found in the room in which the victims had been bound. Weapons were employed in this robbery and employed for the purpose of harming or threatening with harm any who might oppose the robbers. The victims were outnumbered by a gang of men carrying weapons. These robbers would have presented as dangerous persons intent on carrying out their criminal enterprise and indifferent to the consequences to the victims. When they left and the victims were able to free themselves the victims discovered that the robbers had cut the phone line.
The victims raised the alarm and subsequently the police arrived. When the accused were later arrested many of the items of stolen property were recovered.
In HKSAR v Mo Kwong Sang [1981] HKLR 610 the Court of Appeal said that an armed robbery by a group of persons at night which involved an invasion of private premises and the use of violence towards victims should attract a starting point in excess of 7 years. In a number of different cases the Court of Appeal, when discussing the offence of robbery, has indicated what would be aggravating factors for that offence.
In the present case the aggravating factors that are present are: (1) the robbery was clearly premeditated and well planned; (2) it involved the participation of four or more persons; (3) the robbers participating in it were visitors to Hong Kong; (4) the robbery involved the invasion of private premises; (5) it took place in the early hours of the morning; (6) the robbers were armed with knives which they used to threaten and intimidate the victims; and (7) the robbers used actual violence against the victims by binding and gagging them, blindfolding one of them and punching them and cutting one of them with a knife.
With all of these aggravating features present, this is a most serious robbery which demands the imposition of a severe sentence. The court must send a very strong message that persons visiting Hong Kong for the purpose of committing criminal offences here and causing harm to residents here will be met with a very severe response.
I adopt as my starting point for this offence a sentence of 9 years’ imprisonment. This was a joint enterprise and I cannot see any justification for distinguishing between the defendants. I therefore use 9 years’ imprisonment as the starting point for all defendants.
The defendants come from somewhat similar backgrounds. They are all men in their thirties with very limited education and limited employment backgrounds. The 1st and 2nd defendants, having pleaded guilty at their arraignment, are entitled to the full one‑third discount. I accept that they have shown remorse and are regretful for their actions and that, as a consequence of their actions, other innocent parties will suffer; parents, wives, children, but that unfortunately is something which I cannot take into account.
So, apart from their early plea of guilty, there is nothing else in their mitigation which would justify any further discount. I sentence them both to 6 years’ imprisonment.
The 3rd defendant only pleaded guilty after a voir dire at the conclusion of which I ruled his video record of interview to be admissible. For his late plea I allow him a discount of 20 per cent. Likewise, there is nothing else in his mitigation which would justify any further discount. I sentence him to 7 years 2 months’ imprisonment.
The 4th defendant was convicted after trial but by agreeing much of the prosecution case he contributed significantly to a shortening of his trial. For this I discount his sentence by 6 months. There is nothing in his mitigation which would justify any further discount, and for the robbery count I sentence him to 8 years 6 months’ imprisonment.
The usual sentence for burglary is 3 years’ imprisonment but when it takes place in the early hours of the morning and the premises are occupied then a higher starting point is justified to reflect these aggravating features (see HKSAR v Tong Fuk Sing [1999] 3 HKC 332). Here the occupants became alerted to the burglary and raised the alarm. Subsequently, all the stolen property was found abandoned and was recovered. To reflect all these circumstances I adopt as my starting point a sentence of 3½ years’ imprisonment.
The defendant was convicted after trial and the only mitigation which would justify any discounting of this sentence is the fact that he provided assistance by agreeing all the evidence in the burglary offence and for this I allow a reduction of 3 months. So the sentence that I impose for the burglary offence is 3 years 3 months’ imprisonment.
In respect of this defendant, the position then becomes that he is sentenced to 3 years 3 months’ imprisonment for the first count and 8 years 6 months for the second count. As a matter of legal principle it would be perfectly proper to order that the sentence for the second count run consecutively to the sentence for the first count. They are quite separate offences occurring at different times in respect of different premises.
However, before adopting this course, I have to apply the totality principle and consider whether the final sentence that would be 11 years 9 months’ imprisonment would not be a disproportionate and unduly crushing punishment but rather one which reflects the true culpability of the defendant (see HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690).
Having carefully considered these offences, the position of this defendant and all that has been said on his behalf, I believe that a total sentence of 10 years 3 months’ imprisonment achieves the goals of being fair to the defendant and sufficient in terms of deterrence, rehabilitation and denunciation. To achieve that goal I order that 7 years of the sentence for the second count be served consecutively to the sentence on the first count of burglary.
Defendants, please stand up. You have heard and had translated to you the reasons for my sentences. These are most serious crimes and the courts will not tolerate people coming into Hong Kong to visit violence and theft upon the residents of Hong Kong. You are fortunate indeed that no serious harm came to these victims. You are fortunate also that the offences were detected so quickly and you arrested so quickly that much of the property was recovered, but being regretful after the events about having participated in this offence and being caught will not provide this court with any reason to be sympathetic to you.
This court is concerned to see not only that appropriate punishment is meted out to persons such as yourselves, but that the sentences it imposes get back to the mainland so that people there contemplating coming to Hong Kong to rob will be deterred from doing so.
Please refer to CACC25/2012 for the relevant appeal(s) to the Court of Appeal.