COURT: The accused pleaded guilty to one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Chapter 210. He pleaded guilty before a magistrate on 27 March this year, admitted the set of facts in support and was committed to the Court of Final Instance for sentence. Today, counsel representing the accused has confirmed his plea and his admission of the Summary of Facts in support. Accordingly, he is convicted as charged.
According to the Summary of Facts to which the accused admitted, at about 2.55 am on 15 December 2021, when PW1, a female staff, was working alone at a 7‑Eleven convenience store in Tsim Sha Tsui, the accused and another South Asian male entered the store together. They took a bottle of drink from the fridge and approached the cashier. When PW1 was operating the cash register and was about to accept payment, the accused pulled out a folding knife from his pocket and pointed it to PW1 and demanded her to open the cash register. At the same time, the other male was holding a cutter and displaying the cutter to the victim. He also acted as a lookout inside the store.
The defendant reached across the cashier counter and tried to grab the cash register tray. When he was taking the cash from the tray, PW1 resisted and tried to pull back the tray, whereupon the other male approached her and slashed her right forearm with the cutter he was holding. Eventually, the accused took away cash of HK$840 from the tray and he fled the scene together with the other male.
PW1 sustained a cut wound at her right forearm. She was sent to the Accident and Emergency Department of Queen Elizabeth Hospital for medical treatment, but she left the hospital before receiving any medical treatment.
Upon viewing the CCTV installed in the 7-Eleven convenience store and in its vicinity, the accused was located and arrested by the police on 16 December 2021. Upon conducting a house search, some of the clothing that he wore at the time of the offence were seized.
He attended a video‑recorded interview on 17 December 2021 and admitted the following under caution:
(1) He and his friend Mousham went to the 7-Eleven convenience store in question to commit robbery. Both of them were holding a knife as they entered the store. They brandished the weapons at the staff and he took cash of around $1,000 from the staff at the cashier and then they fled the store;
(2) Mousham suggested the robbery plan to him on the offence date and proposed to do it at a 7-Eleven convenience store. The plan was that Mousham would show the knife and he would take the money. When they were strolling on the street, they saw one 7-Eleven convenience store and they just went in the store to commit the robbery;
(3) The folding knife held by him was given by Mousham a few hours before the robbery and he knew that Mousham had a cutter for himself;
(4) After the robbery, they shared the money in half and used it to consume drugs;
(5) Mousham is aged 30 to 35. He did not have his contact method and they only acquainted with each other for two to three months;
(6) Upon being shown the relevant CCTV screen captures, the accused identified himself and Mousham in the CCTV screen captures; and
(7) upon being shown the clothing seized from his flat, he admitted to have worn them at the material time during the offence.
The accused now admitted that, at the material time, he robbed PW1 of cash $840 together with another person unknown.
The accused was 42 years of age at the time of the offence, he is now 45 years old. He has a total of six previous convictions, none of which are of a similar nature. He has received education to Secondary 5 standard in Nepal.
In mitigation, counsel for the accused, Ms Elizabeth Herbert, informed the court that the accused was born in Hong Kong. He spent some time in Nepal and Australia before returning to Hong Kong. He is now a Hong Kong permanent identity card holder. Counsel said that before the offence, the accused performed various part-time and casual jobs earning about HK$20,000 per month. But the job opportunities became scarce in early 2021 because of the COVID pandemic. He committed the offence because of financial difficulties.
Counsel submitted that the accused’s wife was diagnosed with stage 4 breast cancer, and her prognosis remains uncertain after the operation to have the mass removed. Counsel pleaded for a lenient sentence so that the accused could reunite with his wife as soon as possible.
Counsel said it was the accomplice Mousham who suggested the plan to rob a 7-Eleven convenience store, and the folding knife was provided by Mousham a few hours before the robbery. He had only known Mousham for two to three months at the time of the offence.
Counsel said that the accused had no intention to cause any harm or injury to the victim. Only a small sum of $840 were stolen from the shop, and counsel urged this court to consider that the injury sustained by the victim appeared to be minor in nature. She said that the accused was cooperative with the police in that he honestly confessed the offence during the video‑recorded interview, taken shortly after his arrest, in which he also identified himself and Mousham in the CCTV screen captures.
Counsel agreed that this case is aggravated by the fact that the robbery was committed by more than one person, both of them were armed. Actual injury was caused to the victim and the venue of the robbery being a convenience store. But she said that the injury sustained was minor in nature, and the amount of the stolen property was relatively small. She urged this court to take into account the early plea of the accused which should entitle him to the full one-third discount.
After his arrest on 22 May this year, that is about one year and five months after the offence was committed, the accused provided a non-prejudicial statement to the authorities. Counsel accepted that the NPS so provided did not appear to be useful and there is unlikely to result in any arrest or prosecution. However, counsel urged that the matters stated in the NPS were largely canvassed in the video-recorded interview given by the accused, which is summarised in the Summary of Facts.
According to the Summary of Facts, the accused stated in the video-recorded interview that:
“Mousham is aged 30 to 35. He did not have his contact method and they only acquainted with each other for two to three months.
Upon being shown the relevant CCTV screen captures, he identified himself and Mousham.”
Now, counsel also informed me in addition to those information, indeed in the NPS he also identified the district in which Mousham is usually frequent, and that he said he was willing to become a prosecution witness upon the arrest of Mousham.
Nonetheless, from the information provided, I am unable to see how those information could have any use to assist the authorities in identifying the culprit called Mousham. In any event, counsel said the provision of the NPS is an indicator of remorse and the giving of the NPS should be encouraged, therefore a further discount should be given to the accused.
Counsel also pleaded in aid the reasons for sentence in the case of Lo Chi Wai [2022] HKCFI 296, and the case of Nguyen Ngoc Nam [2018] HKCFI 1493 for this court’s reference.
In the case of Lo Chi Wai, the court allowed a further discount of 5 per cent in addition to the guilty plea of the accused because of the NPS given, although the assistance was deemed to have no value by the authorities.
In the case of Nguyen, the court gave an additional discount of 6 months to Charge 3 for his confession and cooperation with the police because there would not be sufficient evidence against the accused but for his confession. So obviously, in the case of Nguyen, the facts are totally distinguishable from the present case.
According to the sentencing guideline for armed robbery set out in the case of Mo Kwong Sang v R [1981] HKLR 610, the Court of Appeal suggested that the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be 5 years. If any physical violence is used on any of the victims, then a sentence of 7 years should be considered. These suggested sentences should be increased if there are other aggravating factors, such as the presence of more than one person in the group of robbers and threats being made to the victims.
Now, in the present case, there were a total of two robbers, each of them armed with a weapon. The accused was holding a folding knife at the time of the robbery and Mousham was holding a cutter. Mousham actually used the cutter to cause injury on the victim when she put up resistance.
The accused accepted that when he entered the convenience store together with Mousham, both of them were armed with the weapons already. So he must have anticipated the use of violence on the victim by using those weapons if it becomes necessary. Not only did they display the weapons to the terrified victim at the time of the robbery, Mousham actually used the cutter to wound the victim when she tried to put up resistance. As a result, she sustained a cut wound at her right forearm. So actual injury was caused to the victim, though it appeared to be of a minor nature.
I bear in mind counsel’s submission that the amount of the stolen property was relatively small, but it was all the money available in the cash register at the time. It was not a matter within the accused or Mousham’s control. Having considered all the circumstances, I consider that 7 years is the appropriate starting point for this armed robbery.
The fact that this robbery was committed on a convenience store is, as rightly accepted by counsel, an aggravating feature that would result in an enhancement of the starting point. In the present case, the parties have chosen to rob the convenience store in the early hours of the morning. They have chosen a time when people are less alert, and there would be some cash with a lone female employee on duty.
Convenience stores are especially susceptible to robbery. As the Court of Appeal said in the case of Wong Cheung [2011] 5 HKLRD 171:
“Apart from robbing private domestic premises, the applicants also armed themselves with knives and acted in concert with other people to rob a convenience store. This court has once emphasised in a case of similar nature, that convenience stores are opened 24 hours and in general, carry large amounts of cash, thus are very tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith shop or other shops which may carry large amounts of cash; and heavy deterrent sentences are called for so as to prevent these shops from falling prey to robbers easily.”
In another Court of Appeal case of HKSAR v Ng Ping Tak, CACC 52/2019, the Court of Appeal considered that the victims being the staff of convenience stores is an aggravating factor. In that case, the Court of Appeal held that an enhancement of 1 year’s imprisonment was appropriate, but emphasised at the same time that it should not be taken as a norm for this particular aggravating factor.
In the present case, there were altogether two armed robbers, each one of them armed with a dangerous weapon. The victim sustained actual injury, she sustained a cut wound on her right forearm. As the authorities rightly identified, a violent robbery of a convenience store is a serious matter that calls for a deterrent sentence because convenience stores are especially susceptible to robbery.
In this case, there was an element of planning because, as the accused admitted in the video-recorded interview, he was given the knife and he was told about this plan to rob a convenience store by Mousham several hours beforehand. And that was several hours before they identified the target store. The offence was committed by two persons in the small hours of the day. And relating to the amount of the stolen property, as I said, I do not accept that the small amount was intended by the culprits because it was all that was available in the cash register at the time.
Having considered all the circumstances of this case, I consider the appropriate enhancement is that of 1 year. So, that brings the ultimate starting point to 8 years’ imprisonment.
The accused pleaded guilty at the earliest available opportunity and he is entitled to the full one‑third discount.
In the case of HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309, the Court of Appeal said that a 33.3 per cent to 40 per cent range of sentencing discount is appropriate for a defendant who had made a genuine attempt to assist the authorities, his assistance had been helpful but, for one reason or another, it was not assessed to be of particularly great value.
In this particular case, the accused had provided a non‑prejudicial statement (NPS) to the police almost one and a half years after the date of the offence. Nonetheless, I accept that the information provided in the NPS is almost the same as that he gave in the video-recorded interview which he provided shortly his arrest.
On the information before me, apparently what he had told the authorities in the NPS was the name, albeit not a full name, of the other culprit; the fact that he is aged between 30 to 35 years; and the district which he frequented. Those information are so vague that they are almost useless to the authorities. In the circumstances, I consider that the assistance that he had given cannot be said to be of any value at all. However, I bear in mind that it is important to encourage arrested persons to render assistance to the authorities.
In the circumstances, I am minded to accord the accused a small further discount of 2 per cent to encourage other offenders to cooperate with the law enforcement agencies. That will bring the total discount to 35.33 per cent.
I have taken into account all the matters urged upon me in mitigation by counsel, the circumstances of this case, the personal circumstances of the accused including the illness of his wife, the fact that the offence was committed about 1 year after he was discharged from prison, and all other matters including the injury sustained by the victim. I consider that there is no other mitigating feature that would entitle the accused to any further discount. So the total discount of sentence is that of 35.33 per cent.
The ultimate sentence after the reduction of sentence is that of 5 years and 2 months’ imprisonment, that is, 62 months’ imprisonment.
You are sentenced to a total of 5 years and 2 months’ for the offence that you are guilty of.