HKSAR v. Tsang Chi Ling and Another

HCCC 63/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 63 OF 2014

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REASONS FOR SENTENCE

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1.The two defendants have pleaded guilty to conspiracy to rob. The particulars of the charge are that, between 6 to 13 August 2013, the 1^st defendant and the 2^nd defendant conspired together and with Lau Wai, Ah Fai and other person or persons to rob.

2.The robbery that had been planned to be carried out focused on a trading company that traded and delivered mobile phones to mainland China.  The trading company routinely would load up early in the morning a delivery van with a large quantity of mobile phones.  The quantity of phones involved would run into the hundreds and represent a total value of several millions of dollars.  The trading company rather unusually would collect mobile phones in Hong Kong and then remove their packaging and place them in new plastic bags for transportation to mainland China.  The suggestion was that the operators of the trading company were themselves involved in some illicit activity.  The planner and organiser of the robbery was a person named Ah Fai.  He contacted the 1^st defendant and told him about the robbery and recruited him as a getaway driver.  Ah Fai planned to commandeer the delivery van and he needed a second driver.  The 1^st defendant approached the 2^nd defendant who agreed to be the other driver.  A fee of $60,000 was offered to the drivers.  Ah Fai also recruited two illegal immigrants from the Mainland to carry out the physical robbery.  There were several occasions when members of the gang viewed the location for the robbery.  

3.On 8 August 2013, the five members of the gang had gone to the business premises of the trading company to carry out a reconnaissance of the area where they planned to conduct the robbery.  It was expected that two staff members would wheel down the mobile phones to the delivery van and it was there that the robbery was planned to take place.  It was also planned that the two illegal immigrants would be armed and do the robbery.  The 2^nd defendant was to commandeer the delivery van and drive it away.

4.On 13 August 2013, in the early morning the 1^st and 2^nd defendants met up with Ah Fai.  The 1^st defendant changed the number plates on a Honda car with plates that he and the 2^nd defendant had stolen on 11 August 2013.  The Honda car was registered in the name of the 1^st defendant's brother‑in‑law but was actually owned and used by him.  They then drove and picked up the two illegal immigrants and proceeded to the location of the robbery at Sheung Shui.  Ah Fai had brought with him a bag which contained knives.  He told the two illegal immigrants that they were to use the items in the bag for the robbery.

5.The gang went to the business premises of the trading company which was next to a Park’n Shop.  Ah Fai got out of the car to check the location while the other four gang members remained inside.  They were to wait for a phone call from Ah Fai.  

6.At about 6:25 am, police had arrived by car at the location and observed the Honda car.  The 1^st defendant was in the driver's seat and next to him was the 2^nd defendant.  The car consisted of three rows of seats and the two illegal immigrants were sitting in the middle row.  A second police car arrived and the two illegal immigrants immediately ran off.  The 1^st and 2^nd defendants remained in the car.  One of the illegal immigrants was eventually caught but the other one got away.  A search of the Honda car by police uncovered a one foot long knife and an extendable metal torch under the middle passenger seat and a yellow plastic bag containing a one foot long knife under the driver's seat. These items were brought along by and belonged to Ah Fai.  Also found was a surgical mask in the driver's pouch of the car and a quantity of six mobile phones.  The phones belonged to the 1^st defendant and some of them were defective.  The 1^st defendant's bag was searched and inside it was a notebook with the following handwritten entries: “6.25 unloading goods” and “MU 8982” or possibly “MU 8902”.  These were a reference to the time the goods were to be unloaded and to the registration number of the delivery van.  The information was provided by Ah Fai.  The 2^nd defendant was searched and found on him was a surgical mask, a pair of black gloves and a silver cutter that was about three inches long.  The 2^nd defendant later explained that the cutter was for the number plates but he had not used it.

7.The 1^st defendant is 42 years old.  He has a list of prior convictions.  From 1994 to 1997 he had various convictions for stealing, and for possession and trafficking of drugs.  In respect of the drug trafficking offence, he received a sentence of six years’ imprisonment in October 1997.  From 2008 to 2011, he had various convictions for blackmail, criminal intimidation and theft. He was last discharged from a correctional institution on 18 April 2012.

8.Mr John Haynes, counsel for the 1^st defendant, submitted in mitigation that the defendant got involved in this criminal enterprise because he was short of money and needed to pay a hospital bill of nearly $40,000 for his mother's recent surgery.  He explained that the defendant was married with an 11 years old son who he cares for very much.  I can only comment that this provides no justification for the crime he committed and even less so if he really cared for his family and son.  He has an appalling criminal record and whilst he is not being punished for his prior criminal activities, he should reflect on his past, and if he really does care for his family and son, he should do something about it in the future.  The crime for which he has been convicted is serious and his personal circumstances provide no mitigation in determining the punishment he should receive.  Mr Haynes made the point that the offence for which the defendant had been convicted is conspiracy to rob and that the substantive offence was not committed.  He made the further point that no one was hurt and nothing was stolen.  However, the planned robbery with all its features was serious and was prevented from being committed due to police intervention and just prior to it being executed.  A defendant should be sentenced on the type of offence and the circumstances of its commission, bearing in mind the maximum penalty prescribed by law for the offence.  It is well established that the sentence to be imposed is for the offence that has been committed and is based on the circumstances of the offence and the offender.  Mr Haynes referred me to the case of HKSAR v Wang Wei [2010] 5 HKC 45  where the defendant had been sentenced in relation to an armed robbery in circumstances where the victim had been tied up and forced to provide at knife point his ATM card and pin number to access his bank account.  I do not find the case helpful because when sentencing cases of this type they will depend on their particular facts and circumstances, including the personal circumstances of the defendant which are also taken into account. 

9.The 2^nd defendant is 38 years old.  He has a long list of prior convictions.  In 1990, when he was 14 years of age, he was convicted for robbery and attempted robbery.  Thereafter he was convicted for offences of burglary, theft, assault, possession and trafficking of drugs for which she received small terms of imprisonment or DATC.  He was last discharged from a correctional institution on 21 March 2014.

10.Mr Victor Cheung, counsel for the 2^nd defendant, submitted in mitigation that the defendant who is divorced lived with his mother and older sister.  He explained that the defendant who worked as a movie foreman got involved in this criminal enterprise because he needed the money to pay off an $80,000 debt for his father's funeral expenses and to finance a second marriage.  This too provides no mitigation whatsoever for the serious criminal wrongdoing involved.

11.I have been informed by Mr Jonathan Acton‑Bond, counsel on fiat for the prosecution, that Lau Wai has been separately dealt with on 21 November 2013.  It appears that he had been originally charged with conspiracy to rob but the charge was withdrawn and a plea was taken for an offence of unlawfully entering and remaining in Hong Kong for which he received a sentence of 18 months’ imprisonment.  Without knowing all the circumstances for this decision, it would appear on what was found in the car, including the weapons and the written notations of the 1^st defendant, and the flight of Lau Wai when the police approached the vehicle, that there was evidence to mount a charge of conspiracy to rob against him.  Mr Haynes has raised the matter on the 1^st defendant's behalf as he has a sense of grievance in that Lau was treated leniently.  I can only say that there may have been good reasons for why the decision was made to withdraw the charge and maybe that is not the end of the matter.  At the end of the day, I am to sentence the two defendants on their pleas of guilty and on the circumstances of the offence that they have both admitted and on their personal circumstances as submitted on their behalves.

12.The sentencing guidelines for armed robbery are found in Mo Kwong‑sang v R [1981] HKLR 610.  When the Court of Appeal set down these guidelines, it explained that they applied to armed robbery involving knives and other dangerous weapons but not to firearms for which severer sentences were normally imposed.  The Court fixed a base sentence of imprisonment of 5 years for an ordinary case of armed robbery which would be increased to 6 years if it involved an invasion of private premises, which would be increased to 7 years if it involved any physical violence, and which could be further increased if there were any other aggravating factors, such as, an invasion of domestic premises during the night; the presence of more than one person in a group of robbers; threats made to victims; ill‑treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

13.The nature and circumstances of an armed robbery and the role played by the defendant in it are key factors when determining an appropriate starting point for sentence.  The key factors in this case are:

1. A gang of five members planned and prepared for a robbery where site visits were conducted and car registration plates were stolen to conceal the original registration plates of the getaway car.

2. The two defendants were members of the gang.

3. The two defendants were to be drivers.

4. The gang included two Mainlanders who were brought in to carry out the physical robbery.

5. The two Mainlanders were to be armed with knives. Both defendants knew that the robbery would involve the use of weapons, although they did not know specifically that knives would be used.

6. The robbery planned to be carried out involved the gang taking a large quantity of mobile phones that were routinely conveyed to a delivery van by two staff members at the business premises of the traders of the phones. The two staff members were to be subdued and the delivery van was to be commandeered and driven away.

7. Four members of the gang were intercepted by the police near the business premises and before the robbery took place. The two defendants did not resist the police and they were found to have no weapons on them. The two other members of the gang tried to make good their escape with one getting away and another being apprehended by the police.

14.There is very little that can be advanced on behalf of the defendants by way of mitigation except for their plea of guilty for which they will receive the customary one third discount to their sentence.  

15.I have taken into account all the facts and circumstances of the robbery and the role that the defendants were to play in carrying it out.  If this robbery had been carried out as planned it would have involved threatening and subduing through the use of weapons two staff members who were to load the mobile phones into a delivery van and commandeering the delivery van which was to be driven away by the 2^nd defendant.  In deciding the appropriate starting point, I have factored in that there would be varying sentences imposed for the different roles played by the members of the gang but bearing in mind that they were part of a joint enterprise where the overall objective was known to them.

16.I therefore consider that the appropriate starting point for both defendants, given their similar role in the gang, should be 7 ½ years’ imprisonment and with the one third discount for their plea of guilty, the sentence imposed on each of them is 5 years’ imprisonment.

Mr Jonathan Acton-Bond, counsel on fiat for HKSAR

Mr John Haynes, instructed by Alfed Lam, Keung & Ko, assigned by DLA for the 1^st defendant

Mr Cheung Chi Fai Victor, instructed by C.S. Chan & Co., assigned by DLA for the 2^nd defendant