COURT: Defendants, you were both charged with two counts. The 1st count was that of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, and the 2nd count was that of wounding with intent, contrary to section 17(a) of the Offences against the Persons Ordinance. Each of you pleaded guilty before a magistrate at the Eastern Magistracy on 9 January this year and have been committed here to the Court of First Instance for sentence.
Both offences were committed on 4 August 2020 at Exit D at the Tai Wai MTR Station, Tai Wai, New Territories. The victim of both charges was the same gentleman by the name of Ng Yiu-san. In respect of the 1st charge, you robbed him of a watch.
Mr Ng, the 47-year-old victim of this case, published on Facebook his Rolex “Daytona” watch, offering it for sale at a price of HK$275,000 in July 2020.
On 2 August 2020, someone responded to his post and arrangement was made for them to meet up on 4 August in Tai Wai for the buyer to try out the watch. At about 4.30 pm that day, Mr Ng arrived at Exit A of the Tai Wai MTR Station and he was approached by the 1st defendant. He showed the 1st defendant the watch for trying. The 1st defendant asked for a lower price but Mr Ng rejected it.
About 10 minutes later, the 1st defendant pretended to agree to purchase the watch and claimed he would retrieve cash from his car. Mr Ng and the 1st defendant then walked to Exit D of Tai Wai Station together. Mr Ng then waited for D1 at the exit. At about 1705 hours on the same day, D1 returned to Exit D and asked Mr Ng to sell the watch at $260,000 instead. Mr Ng rejected this and turned around to leave.
Instantly, D2 who was nearby used a beef knife to chop on Mr Ng’s right leg while the 1st defendant used an extendable rod to hit Mr Ng’s head. The 1st and 2nd defendant then repeatedly used the knife and rod to attack Mr Ng’s head, body and limbs. Mr Ng tried to run away but he soon fell down onto the ground and was overpowered by the defendants. Whilst Mr Ng was on the ground, the defendants continued to attack him with their weapons. Mr Ng then surrendered the bag containing the watch to the 2nd defendant.
In the meantime, the 1st defendant tried to snatch another watch Mr Ng was wearing at the time but failed. Both defendants fled towards the footbridge near Exit D. Passersby made a police report and Mr Ng was sent to the hospital.
Investigation revealed that the dash camera of a private car which was parked at Tai Wai captured the vehicle that D1 and D2 arrived and left the scene with, which was a Toyota private car with the registration number WD 3511. The investigation revealed the defendants dressed in black outfits and caps. The CCTV of the Eagle’s Nest Tunnel captured the vehicle passing through the non-auto toll booth of the tunnel at 1711 hours on the same day, and the Octopus card with a certain serial number which was later found in the 2nd defendant’s possession was used by the vehicle for passing through the toll booth of the tunnel.
Police investigation revealed that the registration number WD 3511 displayed on the car was unregistered. At about 2.45 am on 5 August 2020, a police report was received that this vehicle was located at Man Tung Road, Tung Chung. Police attended the scene and confirmed that the vehicle was a white Toyota with the registration mark WD 3511 displayed at its front and rear.
Upon search of that vehicle, a beef knife with bloodstains was found. One long rod was found. A cross-body sling bag was found containing other Rolex watch parts. Clothing believed to have been worn by the defendants during the offence including an extra-large hoodie, clothing with bloodstains, masks with bloodstains were also found amongst other items.
Upon further investigation, the genuine registration number of the vehicle was found and the owner was contacted. Inquiry revealed that the owner’s son had lent the vehicle to the 1st defendant on 3 August 2020.
On 14 August 2020, the 1st defendant was located at a hotel in Yuen Long and arrested. Under caution, the 1st defendant admitted he hit the victim with the rod but claimed he did not seize the watch. He claimed the $43,775 seized from him was his savings of his salary as a delivery courier for the last two years. He remained silent to the questions regarding the robbery incident.
Upon further investigation, D2 was identified. He was eventually located on 9 September at his place of lodging. He was arrested and cautioned. The 2nd defendant claimed it was the 1st defendant who asked him to act as a lookout and he did not know he was to rob. An Octopus card with the same serial number used to pass through the Eagle’s Nest Tunnel was found in D2’s possession upon search.
In a video-recorded interview, he claimed the 1st defendant drove the getaway car after the robbery. When shown a video clip taken by passersby capturing the robbery incident, the 2nd defendant admitted the video captured the 1st defendant and himself committing the robbery in Tai Wai on the offence date. He identified himself to be the person holding the beef knife and the 1st defendant to be holding the long rod. He admitted that at the time of the robbery, he saw Mr Ng try to resist and thus he used the beef knife to chop Mr Ng twice.
He admitted the beef knife seized from the vehicle was the one he used to attack Mr Ng in the incident and the long rod looked similar to the weapon D1 used in the incident. He admitted that the cross-body Porter sling bag seized belonged to Mr Ng. He further admitted that the two caps were worn by him and the 1st defendant, and the extra-large hoodie was worn by him, and the Nike backpack was used to keep the weapons and clothing they had used during the offence.
He also admitted when shown the screen captures of the dash camera footage of the two getting into the getaway car identified himself and the 1st defendant. He admitted that the Octopus card seized belonged to him.
In the Summary of Facts which I shall refer to later in my reasons for sentence, they refer to the injuries received by Mr Ng which both Mr Yuen and Mr Yeung, counsel for the 1st and 2nd defendants respectively, admit are very serious. Quite commendably, Mr Ernest Yuen and Mr Yeung Shak-nung for the 1st and 2nd defendants respectively admit and concede that this robbery and wounding was a very serious and bad case.
As is common to both defendants, they were both, they say, young at the time of the offence, the 1st defendant being 20 years old and the 2nd defendant being 19 years old. Both defendants committed this offence purely out of foolishness and financial difficulty. Both wanted to earn some quick money. The defendants themselves have admitted this offence at an early and first opportunity, and both say they are remorseful and would like to say sorry for what they have done.
I received a handwritten letter from the 1st defendant, saying he has reflected on his serious wrongdoing and wishes to apologise to the victim. Mr Yuen has informed me that the money that was found upon the 1st defendant in the amount of some forty-odd thousand dollars, the defendant has agreed to use this sum to pay compensation to Mr Ng as a result of the offences committed against him. Mr Yuen has rightly said this is a small sum considering the serious injuries that Mr Ng has entailed and the value of the watch being at some two hundred-odd, almost three hundred-odd thousand dollars. Nevertheless, I take that as some indication of remorse from the 1st defendant.
I had received today, of which Mr Yuen and Mr Yeung have no objection, from the prosecution an e-mail dated 2 May 2023, written by Mr Ng to the police in respect of his present circumstances as a result of his injuries. It is clear that his injuries are permanent and he suffers, continues to suffer from swelling and pain and visits physiotherapy on a weekly basis to relieve the pain. He is taking daily painkillers as well to relieve his nerve pain. He has no ability to run and has poor ankle and foot control. In a nutshell, seeing from his present circumstances, his injuries have seriously affected his mobility and he still suffers symptoms of pain and swelling.
I am informed, although I had indicated and asked for a victim impact report, that the victim, Mr Ng, is out of Hong Kong and will not return to Hong Kong until the end of the year. For that reason, Mr Yuen and Mr Yeung properly acceded to this court receiving the e-mail written to the police by Mr Ng.
Mr Yuen has in his submissions referred to the well-known case of Mo Kwong Sang v R [1981] HKLR 610 and two other cases of HKSAR v Chan Chun Tat, CACC 317/2012, and SJ v Ma Ping Wah [2000] 2 HKLRD 312. Mr Yeung has referred to two cases, also to Mo Kwong Sang and another case of HKSAR v Wong Kam [2013] 1 HKLRD 39. As I mentioned, both counsel properly concede that this is a very serious robbery and bad wounding case.
In respect of the background of the 1st defendant, he is born in Hong Kong on 8 October 1999 and is educated up to Form 2. He is a freelance logistic worker since 2017. He has six previous criminal convictions. They were all committed in the year of 2013 of which he was given probation. Four of those convictions relate to violence, the first being of assault occasioning actual bodily harm and three offences of common assault. In 2014, he breached his probation order and was sentenced to detention centre. He is single and lives with his mother and sister.
Turning to the 2nd defendant, he was born on 21 August 2000 in China and was educated up to Form 3. He was unemployed at the date of the offence but previously employed as a waiter. He lived with his parents and elder sister who, I am informed by Mr Yeung, are here today. He has three previous convictions. They date back to 2013 and 14. Two of those are for violence, that is, assault occasioning actual bodily harm and common assault. He was sentenced to reformatory school.
I am informed by Mr Yeung and Ms Margaret Lau, counsel for the prosecution, that the second defendant has just been sentenced on 28 April 2023 for an assault occasioning actual bodily harm to 3 months’ imprisonment. This offence, I am told by Mr Yeung, was committed whilst he was remanded in custody pending this case and it arose out of a minor dispute with an inmate. Notably, this offence came after the present offence.
Both Mr Yuen and Mr Yeung recognise that the well-known case of Mo Kwong Sang is the case that laid down sentencing guidelines for armed robbery with a knife or other dangerous weapons, excluding firearms. Where there was the use of any physical violence used on any victim, then a sentence of 7 years’ imprisonment would be the appropriate starting point. If there are other aggravating factors, the sentence should be increased.
In the present case, there are a number of other aggravating factors. Firstly, the two defendants acted in concert to rob the victim, Mr Ng.
Secondly, this was a well-planned and premeditated robbery. They falsely represented to the victim that they were interested in purchasing his valuable Rolex watch. They targeted him and set him up as they knew he would be bringing with him this valuable watch. They had come armed with serious lethal weapons, particularly the knife. They had used a getaway car with unregistered licence plates, not being the original licence plate.
Thirdly, the victim sustained very serious injuries and permanent injuries. When Mr Ng rejected the lower offer by the 1st defendant and turned around to leave, D2 instantly used his beef knife to chop at Mr Ng’s right leg and D1 used his long, what I felt, heavy rod to hit the victim’s head. They repeatedly chopped and bashed him with the rod on his head, body and limbs until he fell to the ground. It was then that D2 took the bag containing the Rolex watch.
D1 even attempted to steal the watch that he was wearing but was unable to do so. I note he is not being charged for any offence of attempted robbery in respect of that watch.
The injuries suffered by the victim, as I mentioned, were very serious and are referred to in paragraphs 24 to 26 of the Summary of Facts to which I shall read “Medical Report of PW1”, paragraph 24: “PW1”, who was Mr Ng, the victim:
“...was sent to the Accident and Emergency Department at Prince of Wales Hospital after the robbery incident. He was admitted for emergency operation and subsequently admitted to Intensive Care Unit under Orthopaedics on the same day.
PW1 suffered from multiple scalp (three on the central/right and left occipital area), multiple back and limb lacerations (11 in total) with underlying muscle and right common peroneal nerve injury, resulting in right foot numbness and right foot drop. His lacerations, muscle and nerve injuries were repaired.
He was discharged on 14 August 2020 and continued to receive active rehabilitation for his injuries. He was prescribed an anti-foot drop split for his right ankle for walking. In year 2021, PW1 remained an in-patient post-operatively under the Department of Orthopaedics for further treatment.”
Fourthly, this offence was brazenly committed in broad daylight at Exit D of Tai Wai Station at about 5 pm, an open public place, with dangerous weapons. D2 used what can only be described as a lethal weapon, a knife measuring 43 centimetres in length, with a blade measuring 29 centimetres and a handle of 14 centimetres. D1 used an extendable heavy rod which measured, on total extension of the rod, 66 centimetres, extendable to 42 centimetres and a handle of 24 centimetres.
The attack was made on Mr Ng at about rush hour time and at a time when children finished school. In HKSAR v Sahil Kumar and Another [2023] 1 HKLRD 1363, Macrae VP giving judgment for the Court of Appeal recognised that offences committed in broad daylight and in open public spaces is an aggravating factor. He said at paragraph 25:
“Thirdly, two men were acting in concert committing a brazen and dangerous offence in broad daylight and in an open public place. It is true that the court in Mo Kwong Sang rightly regarded a robbery of domestic premises by night as an aggravating feature, no doubt for the particular horror such an offence may cause to people who are violated in their own homes in the hours of darkness. However, that does not mean that a robbery in public and in broad daylight is any less shocking or egregious. In fact, such violence on the streets can cause widespread panic, even terror and, ultimately, significant trauma for ordinary citizens, in particular children and the elderly, who may witness such a brazen and shocking spectacle in a public place during working hours. Furthermore, there is a real risk that ordinary members of the public may get caught up in the crime and themselves fall victim to it. We have seen the weapon, which has been rather innocuously referred to in the Summary of Facts as a ‘knife’. It was in fact an 18-inch chopper with a 12-inch curved blade, which could quite easily maim or kill if resistance is mounted. PW1 was indeed fortunate that the only injuries he suffered were to his left calf and his face and teeth when he fell.”
Coming back to this case, I can make the same remarks. Originally, in these Summary of Facts, the knife was only referred to as a beef knife and a rod. It was not until I asked to see the beef knife and the rod and for the facts to be included as to the length was the description made in the Summary of Facts. This beef knife could quite easily have killed the victim. It was a serious lethal weapon. Not only, as the defendant D2 said, did he chop the victim twice. He chopped him multiple times. He has maimed the victim. Clearly, it was a vicious attack on the victim.
The defendants themselves both have previous criminal records of violence. Even though they were young, this has carried through till some seven years later when they were in their twenties. They are still violent people.
As both Mr Yuen and Mr Yeung have stated, the only, only mitigating factor in this case is their early pleas of guilty. I accept of course that the 1st defendant has offered some compensation, but this certainly is not anything close to what I would estimate any compensation if Mr Ng was awarded and would be entitled to.
In respect of the wounding charge, the defendants had brought along these weapons. Although D2 had used the knife and D1 the rod, they were acting in concert together. They had planned to set out and attack the victim in order to steal the valuable Rolex watch. The attack on the victim was relentless until he eventually succumbed to their attack, fell to the ground as a result of the serious injuries, and only then was D2 able to grab the bag containing the watch from him.
Defendants, this can only be described as a vicious, brazen attack on the victim, carefully planned and premeditated with at least one lethal weapon. For the offence of robbery, I take a starting point of 9 years’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 6 years’ imprisonment.
As to Count 2, the offence of wounding, I also adopt a starting point of 9 years’ imprisonment and I shall reduce that to a term of 6 years’ imprisonment, given your pleas of guilty and giving you the full one-third discount.
Both defence counsel have asked for this wounding charge and the robbery charge to run concurrent to each other. However, it is clear that a separate charge of wounding during the course of a robbery that a consecutive sentence should be imposed. The Court of Appeal confirmed this in the case of HKSAR v Singh Gursevak [2019] 2 HKLRD 274 where at paragraph 51, the court said:
“...the violence inflicted upon the victim was far more than is usually encountered in a robbery and should have been the subject of a separate charge for which consecutive sentences should have been imposed. In R v Chan Kwai To, Penlington JA said:
‘In AG v Chan Kin Chung and Another [1980] HKLR 642, an application for review, a concurrent sentence for wounding during the course of a robbery was made consecutive, which clearly is correct. The actual wounding, while committed during the robbery, is a separate offence and should be treated as such in the same way as an offence of rape committed during such a robbery.’”
In those circumstances, I do consider that a partly consecutive and partly concurrent sentence should be imposed. Given the principle of totality, for these two offences, I would consider a notional starting point of 12 years’ imprisonment to be appropriate. Giving you full credit for your plea of guilty, that will reduce the sentence to 8 years’ imprisonment.
I therefore order 2 years of Charge 2 to run consecutive to Charge 1, making a total term of imprisonment of 8 years’ imprisonment.