HKSAR v. Yiu Chi Ming and Another

DCCC639 & 929/2011 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 639 & 929 OF 2011 (CONS)

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.Both defendants were charged with an offence of robbery. On 26 March 2011, outside the Hang Seng Bank in Kowloon City on Prince Edward Road West in Kowloon City, together with a third person, who is unknown, they robbed Yip Ka-keung of $440,000 in cash.

2.The 1st defendant pleaded not guilty to that charge and I convicted him after trial.    

3.The 2nd defendant pleaded guilty to the charge.

4.The 1st defendant also pleaded not guilty to three other charges, which he alone faced.  The offences were committed on the same day.  They all related to the use of the motor vehicle that was used in the robbery.    

5.The first offence was an offence of using the vehicle which bore false registration marks.  He was disqualified from driving at the time of the offence and he was charged with driving whilst disqualified.  Arising from that offence would be the inevitable charge of using a motor vehicle without third party insurance.  To those charges the defendant also entered not guilty pleas and was convicted after trial.     

6.The facts of the case that I have found proved and which were admitted by the 2nd defendant disclose that the victim in this case, PW1, went to the bank in question at about 9.14 am on 26 March.  He went into the bank for the purpose of withdrawing some moneys from it.  He was in the bank for some time, and during that time he was given by one of the tellers $440,000 in cash.  This money was placed into an envelope which the victim placed under his arm.    

7.The victim left the bank at about 10.15 that morning.  When he left the bank he walked across a road at the side of the bank, and having got to the far pavement of that road, he was approached by two men from behind.  One of those men knocked the victim on his head, knocking him to the ground, and he lost his glasses.  The second men snatched the brown envelope from the victim.  The two thieves then ran to a nearby car.  This was a car being driven by the 1st defendant.  The registration number of the car was MA4421.     

8.As the two men were running to the car, they dropped some banknotes and they quickly picked those up and threw some of them into the back of the car, but they left further banknotes on the pavement near the roadside.  The car was then driven off quickly in the direction of Wong Tai Sin.  This entire incident was witnessed by a number of people. 

9.About 40 minutes later, at about 11 o’clock, a team of police officers spotted the car used in the robbery outside a garage in Kwun Tong.  The 1st defendant was standing next to the vehicle.  When the police officers arrived there, the front registration plate of the vehicle MA4421 had been replaced with the original number of the vehicle, that is PB2129.      

10.The 1st defendant denied that he drove the vehicle or was involved in the robbery.  The court was satisfied that he had both driven the car and was involved in the robbery. 

11.A search of the car revealed the brown envelope in which the cash had been contained under the driving seat of the vehicle.  A fingerprint examination of the envelope revealed three fingerprints of the victim, PW1, and the right palm print of D2.  The fingerprints of D2 were also found inside the car. 

12.CCTV cameras installed outside the bank recorded that the vehicle involved in the robbery was parked outside the branch at 0906 hours. 

13.The 2nd defendant was arrested and interviewed in connection with this offence some months later when he was in custody for another matter.  He denied his involvement in the offence.   

14.Both the defendants have criminal records.  In the case of the 1st defendant, he has been before the court on a number of occasions in matters mostly relating to the use of or taking without consent of motor vehicles.  There are also some drug-related offences recorded.  It was agreed during the course of the trial that the defendant was disqualified from driving for 4 years from 10 July 2007.  He has a previous conviction for driving whilst disqualified in 2008.  

15.The 2nd defendant also has a number of previous convictions recorded against him.  He has appeared before the court on 10 previous occasions for a variety of offences.  He was convicted of robbery in 2001.  There are a number of offences of violence and criminal damage recorded on his record, and most recently he was before the courts in August and September of this year for separate offences of false imprisonment, for which he was sentenced to 16 months’ imprisonment and 12 months’ imprisonment respectively and it was ordered that 6 months of the second sentence be consecutive to that on the first sentence.  I am told that his earliest release date is 7 August 2012. 

16.In mitigation for the 1st defendant, it was urged upon the court that the defendant is still young, he was only 26 at the date of the offence.  He had had a steady job up to earlier this year, but due to differences with his employer he was out of work at the date of the commission of the offence.   

17.Counsel for the 1st defendant acknowledged that his client had a poor record but correctly said that most of them were for traffic-related offences.  I am told that he is unmarried but lives with his girlfriend and she is still supporting him. 

18.It was urged upon the court that this was an unarmed robbery and there were no injuries caused to the victim who fell to the ground.  It was also urged upon the court an unusual feature of this case, that it was not the victim who reported the matter to the police but witnesses nearby who had witnessed the robbery taking place, and it was urged upon the court that this was not a professionally executed robbery, but rather an amateurish offence.   

19.I was referred to the case of Mo Kwong Sang, which is the leading authority on sentencing for offences of robbery.    

20.As regards the 2nd defendant, he is also aged 26, and as I indicated previously, his earliest release date from prison for the current offences he has been dealt with is 7 August 2012.  He has been in custody for 4 months since his arrest.  I am told that he has a supportive family and his family members visited him on a daily basis.  I am told that he has a girlfriend and at the moment she is pregnant and due to give birth on 28 November this year. 

21.The 2nd defendant was arrested in June of this year whilst on remand in Lai Chi Kok for the offence of false imprisonment.  I am told that when he is eventually released from imprisonment he intends to face up to his domestic responsibilities.    

22.As with the 1st defendant, it was pointed out that there were no aggravating features in this case, no weapon was used and the victim was unharmed. 

23.Notwithstanding what has been said in mitigation, I take the view that this robbery was a well-organised robbery. This was not the usual type of street robbery that so frequently comes before this court. 

24.Video footage recorded by cameras outside the bank show that the car used in the robbery was in position in the side street outside the bank at 0906 hours.  The car was bearing false registration plates.  The victim entered the bank at 0914 hours and left at 1015 hours. After PW1 left the bank, two thieves got out of the car to follow the victim, and as they did so the car itself was driven horizontally across the road with the rear doors still open.  The robbery itself was committed very quickly.  The victim was knocked to the ground.  Someone having knocked the back of his head, he fell forward and lost his glasses.  The envelope which he was carrying was snatched from him and the two thieves made off quickly to the nearby waiting car.   

25.Notwithstanding that this theft was committed in broad daylight, it was carried out so quickly that none of the eyewitnesses were able to provide the police with any useful descriptions of the thieves. 

26.35 minutes later the car used in the robbery is seen outside a garage in Kwun Tong, and when the police spot the vehicle, the front number plate had already been changed to the original registration number of the vehicle. 

27.I bore in mind that no weapon was used in the robbery and there was no invasion of private premises and the victim was uninjured.  Clearly, however, this offence is in a different category from the usual street robberies which this court deals with. 

28.The amount stolen was $440,000.

29.I have taken into account all the factors urged upon me in mitigation, and in respect of Charge 1, I take a starting of 6 years’ imprisonment. 

30.On Charge 1, the 1st defendant will go to prison for 6 years; on Charge 2, he will go to prison for 9 months; on Charge 3, 9 months; and on Charge 4, 2 months. 

31.In respect of Charge 3, the defendant will be disqualified from driving for a period of 5 years.  On Charge 4, he will be disqualified from driving for 1 year, that disqualification period to run concurrently with the disqualification period on Charge 3. 

32.I order that the sentences on all the charges run concurrently. 

33.I also order that the 1st defendant must attend and complete a driving improvement course under the provisions of section 72A(1)(a) of the Road Traffic Ordinance, Cap.374, at his own expense. 

34.The 2nd defendant pleaded guilty to the one charge which he faced, that of robbery.  In respect of that offence, he will go to prison for 4 years.  I order that 3½ years of that sentence shall run in consecutive to his existing sentence. 

Please refer to CACC472/2011 for the relevant appeal(s) to the Court of Appeal.