COURT: The defendant pleaded guilty to four counts of attempted robbery contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200, and one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance before the Eastern Magistracy on 23 September 2024. The defendant confirmed his plea and his admission of the Summary of Facts before me.
The Facts
There were five incidents. Count 1 (incident 1) happened on 20 February 2023. Counts 2 to 5 (incidents 2 to 5) happened on 30 April 2023.
Count 1
The first incident occurred at about 7.50 pm on 20 February 2023. The defendant entered a Circle K convenience store at 15 Shing Fong Street, Kwai Chung (“Store 1”), and approached the female staff. He suddenly took out a fruit knife (about 15 centimetres long) when he was about 1 metre away from her
and shouted “Robbery” in Punti. He asked the staff to open the cashier tray. The staff was yelling as she was frightened. After about ten seconds the defendant backed off and left the store. No injury was suffered by the staff and Store 1 did not suffer any loss. The incident was captured on CCTV.
The offences of Counts 2 to 5 occurred successively on 30 April 2023. They are as follows:
Count 2
The second incident happened at about 9.57am at a 7-Eleven convenience store situated at 47-49 Tai Po Road, Sham Shui Po (“Store 2”). The defendant approached a part-time shop assistant Mr Tsui, who was working alone at the cashier, with a pair of scissors in his hand and said to Mr Tsui in Punti “Don’t move. Robbery. Take out all the money”. He then said “Take money” again. He tapped the cash cashier with the pair of scissors. When the defendant passed by the snack bar and intended to walk into the cashier area through the iron door, Mr Tsui went to kick the iron door, the defendant backed off and left the store. Mr Tsui did not get injured and Store 2 did not suffer from any loss in the incident. Incident 2 was captured by CCTV.
Count 3
The third incident happened at about 10.10am, 13 minutes after the second incident. Ms Wong and her colleague were working as shop assistants at the Circle K convenience store situated at Shop C, Ground Floor, 15-19 and 19A Cheung Sha Wan Road, Sham Shui Po (“Store 3”). The defendant rushed into the store and brandished a pair of scissors held in his right hand at Ms Wong and her colleague, and shouted in Punti, “Don’t move. Robbery. Take out all the money”. Felt very frightened, Ms Wong randomly took out a pile of banknotes from the cash register. After the defendant took the banknotes, he quickly left the store. Store 3 suffered a loss of HK$1,000 cash. Incident 3 was captured by CCTV.
Count 4
Incident 4 occurred at about 10.41am on 30 April 2023, about 31 minutes after the third incident, the defendant entered a bakery at Shop 11, Ground Floor, Nam Cheong Centre, 89 Nam Cheong Street, Sham Shui Po. He took out a pair of scissors from the right pocket of his pants and brandished it at the cashier, Ms Mui, who was working alone. The defendant shouted in Punti, “Don’t move. Robbery. Take out all the money, otherwise I will poke you to death”. Felt very frightened, Ms Mui ran into the kitchen, and shouted to her colleague about the robbery. When her colleague was about to move, the defendant had already left the store and fled. Ms Mui initially did not make a report to the police as no one was injured and the store did not suffer any loss. She later reported it to the police as she saw similar incidents from the news. Incident 4 was captured on CCTV.
Count 5
Incident 5 occurred at about 10.45am, four minutes after the fourth incident. Ms Su was working alone at the cashier in a 7-Eleven convenience store at Ground Floor, 263 Yu Chau Street, Sham Shui Po (“Store 5”) when the defendant entered Store 5 and brandished a pair of scissors at Ms Su and shouted in Punti “Robbery. Take out all the money”. Felt frightened and shocked, Ms Su could not react and did not give money to him. The defendant then poked Ms Su’s left arm once with the pointed end of the scissors. Ms Su immediately pressed the alarm bell. The defendant fled away from the scene.
Ms Su was later sent to the Caritas Medical Centre for medical treatment. She suffered from left shoulder redness. Store 5 did not suffer loss in this incident. Incident 5 was captured on CCTV.
On 30 April 2023 at 10.56am, the defendant was later spotted by a police officer at Lai Chi Kok Road near Pei Ho Street, as his outfit matched with that of the suspect involved in multiple robberies. The defendant intended to flee when the police were approaching. He was subdued in a carriage way. The defendant said he robbed because he did not have money. A pair of scissors, HK$379 cash, and a face mask were found and seized from the defendant upon search.
Three cautioned interviews were made by the defendant on 30 April 2023 between 12.10pm and 2.05pm regarding incidents 2, 3, and 5. He said he robbed because he did not have money. In relation to incident 4, he attended the cautioned interview on 1 May 2023 in the presence of his father and remained silent.
On 12 May 2023, he attended a further cautioned interview regarding incident 1. He said he robbed out of impulse. He admitted committing the robbery as he did not have money for spending and needed a gash point card for the game on his phone. He tried to rob the staff to see if she had money. He brandished a fruit knife at the staff and shouting robbery. When a colleague of the staff came out to help, he said he was frightened and immediately fled away. He did not successfully rob anything and went home. He recognised himself on the two CCTV screen captures. He said he picked up the fruit knife from the rubbish bin and threw it away later.
In a subsequent video-recorded interview on 1 May 2023, the defendant remained silent on most of the questions for incident 2, except he claimed he had never been to Store 2 at the relevant time. And that he knew Mr Tsui at school, and he claimed Mr Tsui was the person who told him to rob together and split the money thereafter. He could not confirm if the scissors shown in the photo album were used by him.
The defendant now accepts and admits that at the material times:
(1) He attempted to rob the staff of Store 1, 2, 4, and 5; and
(2) he robbed Ms Wong of HK$1,000 cash at Store 3.
The Defendant’s Mitigation
The defendant is now 36 years of age. He received education up to Form 3. He was unemployed at the time of the offence and had been a recipient on disability allowance. He has been residing in a long stay care home, Parklane Rehabilitation Home, Kwai Chung, since 2021, after a four year hospitalisation at Castle Peak Hospital for management of his poor frustration tolerance and behavioural problem. The defendant had eight court appearances and 11 previous convictions, seven of which were dishonesty related offences. The latest one was in April 2015 when he was convicted for a case of theft and was sentenced to 7 months’ imprisonment.
In mitigation, the defendant had pleaded guilty at the earliest opportunity.
Mr So, on the defendant’s behalf, in both his written and oral submissions, urges the court to take into consideration the defendant’s history of mental illness when coming to a decision about his sentence. Mr So submitted the defendant has been suffering mental illness since 2011 and produced psychiatric reports of the defendant.
In view of the psychiatric history of the defendant, I adjourned the hearing for an updated psychiatric report on the defendant to be prepared.
I have read Dr Tang’s report dated 10 December 2024. The defendant was first known to mental health service when he was assessed at Siu Lam Psychiatric Centre in 2011 for poor impulse control and aggression. He started to abuse ketamine and cannabis at 20 years old under peer influence, but denied dependence features and claimed he had abstained from illicit drugs for years. The defendant had unstable
job records and was financially supported by his uncle and aunt all along. He regularly gambled on poker, spending a few hundred dollars daily.
He had repeated psychiatric admissions for behavioural problem and non-specific psychotic symptoms. He was labelled to be a special care case in 2016 for history of multiple violence. He was transferred to a long stay care home in 2021. He was last admitted to Kwai Chung Hospital from March to April 2023 for aggression towards a co-resident in the hostel. The defendant was diagnosed with organic personality and behavioural disorders due to brain disease, damage and dysfunction, psychosis and personality problem, with limited intelligence. He was treated with multiple oral and depot psychotropics including antipsychosis, mood stabiliser, and sedatives.
Dr Tang opined that the defendant understood the charges he was facing and his position in legal proceedings. The defendant said he needed money for online gaming and gambling habit, so he wanted to obtain money from different stores and then he pointed scissors towards the cashiers in different shops to get money. And therefore he has to be fully responsible for the actions he carried out.
Dr Tang considered that the defendant’s mental condition has been largely stable for months in custody with psychiatric medications. She considered that no inpatient psychiatric management was warranted at present, while outpatient follow-up is recommended.
Approach to Sentencing
There is a multiplicity of offences before the court. In sentencing the defendant, I will pass a sentence on each individual count, and then apply the totality principle to reflect the overall criminality of the present case (see HKSAR v Chan Nai Keung and Others [2008] 2 HKC 378). That is especially important, since the present case involves a series of attempted robberies and robbery deliberately carried out by the defendant. This reflected his persistence in offending at that time.
In sentencing, I have borne in mind the facts of the case, the nature of each robbery in question, the background of the defendant, and the matters urged on his behalf by his counsel, Mr So. The psychiatric reports before me show the defendant was on medication and knew the consequences of his actions.
The five robberies were of five separate convenience stores, one on 20 February 2023 and four on 30 April 2023. Apart from Count 1, the others were committed by the defendant in the morning. For Counts 2 to 5, the robberies were committed successively at different locations. In each of the robberies, the defendant either used a knife or displayed a pair of scissors to the shop assistant. In Count 3, the defendant brandished a pair of scissors at the storekeeper, declared robbery, and demanded money. The storekeeper opened the cash register and gave him $1,000. He took the cash and fled.
It is obvious that the defendant set out to target convenience stores knowing there would be some cash with a lone or very few employees on duty.
All robberies involved a display of weapons to the storekeepers and in relation to Count 5, he poked the storekeeper’s left arm once with the pointed end of the scissors. No actual violence was inflicted on them.
The tariff for armed robbery was laid down in Mo Kwong Sang v R [1981] HKLR 610. In an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victims, the appropriate sentence is 5 years’ imprisonment. Besides, the multiplicity of offences of a similar kind is properly considered as an aggravating factor and the sentences should be increased from the sentencing guidelines.
Further, the victims in the present case were staff of convenience stores. The courts have long determined that the robbery at such location would heighten the culpability of the defendant which should be met with a deterrent sentence (see HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 699 at paragraph 31 and HKSAR v Wong Cheung [2011] 5 HKLRD 171 at paragraph 16). I cannot ignore this public policy considerations in this case.
There is another aggravating factor capable of justifying enhancement of the starting point. The defendant has a bad criminal record for dishonesty going back to 2009. One of them was in the High Court HCCC 68/2012. In that case, the defendant also pleaded guilty to two offences of robbery and one offence of attempted robbery. He had used a knife to brandish towards the shop staff. He was sentenced to 63 months’ imprisonment on 20 April 2012. On 29 April 2015, he was sentenced to 7 months for an offence of theft. In Har Tsz Yui [2020] 1 HKLRD 307, the Court of Appeal said:
“Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which the judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual, and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.”
That said, the court should ensure that the degree of enhancement must be reasonably proportionate to the basis sentence and the total should not be excessive (see HKSAR v So Yat Ting [2021] 1 HKLRD 1215 at paragraph 49).
Having regard to all the circumstances of the case, the number of robberies committed, the well-documented mental condition of the defendant, that it was aggravated by the fact that the robberies took place in convenience stores, and the defendant already has a significant record of dishonesty, in my judgment each count calls for an upward adjustment of 1 year. That brings the starting point for each count, ie Counts 1 to 5, to 6 years’ imprisonment. The defendant will be given one-third discount because of his timely guilty plea, the sentence on each of Counts 1 to 5 is therefore 4 years’ imprisonment.
The last step is to determine the appropriate overall sentence to be imposed on the defendant, taking into account the totality principle. Mr So urges me to consider HKSAR v Lam Hoi (CACC 105/2016) in which a global starting point of 8 years was adopted.
Mr So says that the 18-year-old defendant in that case committed three robberies on three consecutive days in three different 7-Eleven convenience stores. In relation to the first, the appellant produced an 8-inch long knife and pointed it at the shop staff’s stomach. For the second offence, he held an 8-inch long knife and pointed at the staff’s head. The third offence occurred, the appellant took out a 12 inches long knife and declared robbery. It originated from the appellant wanting to help a girl who lacked money to pay rent and he himself was cheated by that girl. In that case the defendant was a person of previous good character and a further discount was given to him to reflect his surrender to the police. The judge in that case adopted a starting point of 6½ years imprisonment for each of the three counts of robbery. Tailoring to the circumstances of that case, the court considered a starting point of 6 years is appropriate but emphasised at paragraph 55 that it should not inhibit a court from adjusting sentences to accord with the record, age, or other personal circumstances of the accused or from taking account of the
particular facts of the case before it. The Court of Appeal considered that for the circumstances of that appellant’s overall criminality, a global starting point of 8 years’ imprisonment was appropriate to reflect that appellant’s overall culpability.
However, the Court of Appeal also cited the case of HKSAR v Choi Ka Kin Seraphim (CACC 377/2012, unreported, 26 April 2013) at paragraph 63, involving six robberies of convenience stores by a 20-year-old who committed all but one of the robberies in the company of another. A global starting point of 9 years’ imprisonment was considered appropriate.
The Court of Appeal in Lam Hoi further stated at paragraph 60 that:
“As each offence represents additional culpability of the appellant the sentences could, in principle, be made consecutive subject to the overriding application of the totality principle. Clearly this principle would prevent orders being made for the sentences to run wholly consecutively.”
Having considered all the relevant matters, I take the view that a partially consecutive sentence should be imposed for these offences. Given the circumstances of the defendant, the fact that he already has a significant record of dishonesty, the overall culpability of the five robbery charges, and the totality principle, I consider a total sentence of 5 years 8 months’ imprisonment, after a one-third discount, is appropriate.
To achieve that total sentence of 5 years 8 months’ imprisonment, I order that 5 months of the sentence for each of Counts 2 to 5 be served consecutively to the sentence in respect of Count 1. In other words:
(1) 4 years imprisonment for Count 1;
(2) 5 months of Count 2 is to run consecutively to the sentence imposed on Count 1 with the balance to be served concurrently;
(3) 5 months of Count 3 is to run consecutively to the sentences for Counts 1 and 2 with the balance to be served concurrently;
(4) 5 months of Count 4 is to run consecutively to the sentences for Counts 1 to 3 with the balance to be served concurrently; and
(5) 5 months of Count 5 is to be served consecutively to the sentences for Counts 1 to 4 with the balance to be served concurrently.
Accordingly the total sentence imposed on the defendant is 5 years and 8 months’ imprisonment for all these offences.