HKSAR v. TO HOI KEUNG

HCCC 374/2018

[2019] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 374 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Mr To, you pleaded guilty to one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and to one count of robbery, contrary to sections 10(1) and (2) of the Theft Ordinance, Cap 210. These were two separate and distinct offences taking place on 6 March 2017 and 28 February 2018 respectively.

A statement of facts has been read out today in respect of both offences and you have agreed them.

On 6 March 2017, at 1515 hours, you approached King’s Jewellery which is on the ground floor at 92 Castle Peak Road in Yuen Long. Inside that shop, you pretended to be a genuine customer, but when offered a necklace to look at, which had a value of some HK$17,000, you fled with the necklace. Because you left behind some personal items, your DNA was extracted from them and you were arrested for this offence when you committed the robbery.

Under caution, you admitted this theft and you said you had melted down the necklace.

On 28 February 2018, which was almost a year later, at a similar time in the afternoon, you approached a bank teller in No. 10 Des Voeux Road in the Bank of East Asia branch. You passed the teller a note on which you had written “Please do not alert anyone. Put all the money into the bag and pass it to me. If you don’t follow, I will shoot to kill you”. At the same time, you said to her, “Remain silent. Don’t tell anyone,” and to give effect to that threat, you unzipped your jacket and you drew out what was in fact an airgun. It looked like a pistol. The teller was extremely frightened but had the forethought to show her supervisor the note, and he pressed the alarm. Even so, they were brave enough to approach you and you were shouting at them at that stage to be quick.

You proffered an orange Mannings bag and you kept shouting and repeating, “Give me all of your money quickly. Won’t you believe that I will really kill you? Don’t think I’m not serious. Won’t you believe that I will open fire?”

Not surprisingly, the supervisor took cash, $71,390 in this case, from a drawer and put it into your bag during which time you kept on shouting at them, and to make it worse, you were counting “One, Two, Three” and the reverse, menacingly, “Three, Two, One” and aiming the pistol at them from what was just half a metre away. When he gave you the bag with the money in it, you left the bank.

Later that evening, you were seen to secrete the pistol and pellets in a bag in bushes in Tin Shui Road, and on arrest, you were found to have $4,680 in Hong Kong currency on you and 8,150 in RMB in one bag and $52,567.50 on your person, and we have been told you admitted the robbery.

The gun you were using that day was a pressurized gas‑powered airgun which could fire a 6-millimetre plastic ball. Even though the gun was not in working order, that is completely irrelevant to the sentencing in this matter because according to you, you did not know.

You are 58 years of age today. You are married and have a 16-year-old daughter who has recently joined you in Hong Kong where your wife also lives. I am told your daughter unfortunately suffers from a mental illness and that she has to receive medication. You were employed. When you were working, you worked as a cleaner and you were able to earn between 5,000 and $8,000 a month, and I note that you were co-operative and full and frank with the police on arrest although one has to say, Mr To, that that really was no surprise given that you were caught on CCTV footage throughout and there was a DNA connection between you and the first crime and all of the money was found on you.

According to you, Mr Fu says to the court that you committed this awful crime in order to obtain money to pay for your daughter’s medical expenses. Looking at the amount Mr Fu says you wished to remit to China the very same day, in other words, the RMB8,150, it does not appear that you needed to go so far as robbing a bank at gunpoint to obtain that sort of money.

You are not a man of good character. You have an extensive criminal record for matters of dishonesty dating back to 1983 when you were 22 years of age. Between 1982 and 1987, you were before the courts every single year for burglary, attempted theft, theft, robbery, false imprisonment and possession of arms.

You were in and out of prison until you received a total of 16 years for two matters of robbery, false imprisonment and possession of arms. You must have served approximately 11 years and it appears that you wasted no time offending again because in 1999 you were before the courts for theft and in 2000 for five matters of robbery and wounding, and it looks there as if you received 10 years in all for that offending and again would have served something in the order of 6 years if that was after plea.

Then you faced a fraud charge and received a suspended sentence, but that was followed by more thefts in 2014 and 16. I have no choice but to take the view that you are a career criminal. The passing of the years has taught you no lesson, and I have to take that into account when sentencing you for this very serious matter as you are a clear and present danger to society.

On Count 1 for the theft of the jewellery of the value of $17,000, I adopt a starting point of 12 months. There is no mitigation which reduces that sentence and therefore I will discount that starting point by a third for your timely plea, and on Count 1, you will go to prison for 8 months.

As for Count 2, which is significantly more serious, as was said by Yeung JA, as he then was, in Secretary for Justice v Lee Chun Ho Jeff [2009] 6 HKC 471:

“It must be recognized that robbery (and I add for that matter or any offence) with the use of firearms is particularly hideous because firstly, they cause much greater fear to the victims, and secondly and perhaps more importantly, the use of firearms by robbers will increase the chance by law enforcement officers resorting to their own firearms, thus exposing the public to serious risk of death or personal injury. The fact that the firearm is an imitation firearm makes little difference as on the spur of the moment, neither victims nor the law enforcement officers may appreciate that it is an imitation firearm.”

An imitation in this sense, of course you know, Mr To, is not in the sense that it is a toy. You actually had something that could expel a pellet and take somebody’s eye out.

That quote follows a substantial line of authority which indicates that the armed robbery of banks, whether with real or imitation firearms, attracts a starting point of between 12 and 15 years’ imprisonment, and I refer to R v Lo Kwok Hung, CACC 472 of 1991, R v Yu Wai Lam, CACC 56 of 1991, HKSAR v Wong Wai Keung [2003] 3 HKLRD 39 and HKSAR v Lau Oi Ming, CACC 270 of 2002.

Given the very serious nature of what you did, the fact you terrified a poor bank teller by way of waving a pistol at her from just half a metre away and had the remainder of the staff cowering under their desks, I adopt a starting point of 15 years. There is no mitigation which can reduce that sentence. The moneys needed for your daughter did not and never would justify robbing a bank in this manner.

For the aggravating factor of your enduring recidivism especially in respect of violent crime, I intend to add 2 years to your sentence on Count 2, which makes 17 years, and therefore after a reduction of one-third for your plea of guilty, makes 11 years and 4 months.

I have considered totality of sentencing but these offences are wholly distinct from one another and need to be sentenced accordingly. Your sentence on Count 2 will be served wholly consecutively to your sentence on Count 1, and you will go to prison for 12 years.