HKSAR v. WONG WAI FUNG, TIMOTHY AND OTHERS

HCCC 139/2020

[2022] HKCFI 3694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 139 OF 2020

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REASONS FOR SENTENCE

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1.  All six defendants appeared before this court on 24 June 2022 and confirmed their pleas of guilty to one count of robbery, contrary to s10(1)  and (2)  of the Theft Ordinance, Cap 210. At that time the matter was adjourned pending the trial of their co-defendants under HCCC 138/2020, which took place on 29 November 2021. Throughout these proceedings, the defendants have variously been referred to as Arrested Persons (AP1-13), or by their original defendant number when charged and brought before the Magistrates’ Courts at a time when their number included the three defendants who ultimately went to trial and thereafter, because the trial and sentencing matters were separately listed, by a different set of defendant numbers in the Summary of Facts, which is different from how they are identified today. I will attempt to cross-reference those herein below to assist any superior court.

Background

2.  Kam Shum Remittance Trade Limited (“Kam Shun”)  is a licensed money service operator, situated at Far East Mansion, No 5-6 Middle Road, Tsim Sha Tsui.  All six defendants before the Court today played their part, along with at least three others, in the robbery of HK$10,000,000 in cash on 8 August 2018.  This took place when two men were transferring that cash from Kam Shun to a 7-seater vehicle parked outside of the building.  The driver of the vehicle, PW1, had parked just outside of the entrance to the building in Middle Road and was waiting for the two couriers to load their suitcases into the boot of the vehicle when he was hit over the head with a bottle causing a gash to his head.  A melee ensued in which the driver and couriers were further assaulted and two suitcases were taken from the boot of the vehicle, one of which contained the $10,000,000.

3.  The trial of the three co-defendants, Asif Ahfaq Mehmood, Nabeel and Kwok Ching-lok (AP1, 2 and 7)  took place in November 2021. They had been recruited by D1 (AP3 and D3)  to assault someone on 8 August 2018 and maintained they knew nothing about any intention to steal.  They offered pleas on that basis, which were not accepted by the prosecution, and accordingly, went to trial at the end of which they were acquitted of robbery but found guilty of an alternative count of common assault.  This was on the basis that Mehmood hit the driver of the vehicle over the head with a bottle and D2 and D3 joined in the attack against the two men with the suitcases by punching and kicking them.  They each received a sentence of imprisonment of 12 months which took into account their earlier indication of plea.

4.  D1, Wong Wai-fung Timothy (AP3 and originally D3), was born on 20 June 1997 and was 21 at the time of this offence.  He was educated up to Form 6.  He is single and lives with his father, mother and sibling.  On 11 August 2015, when he was 18 years of age, he was dealt with for another offence of robbery before the District Court at which time a Training Centre Order was passed and I note that he was subsequently placed upon CSD Supervision, which commenced on 27 January 2017, not long before this offending.  He has been in custody for this offence since 15 August 2018.

5.  D1 acted as a lookout during the robbery on 8 August.  He had been recruited as a lookout by someone referred to as G and was asked by G to recruit others.  G has never been identified.  Although initially reluctant to assist the police, on being presented with the evidence contained within his mobile phone, D1 eventually accepted that he had been recruited by G and offered HK$500,000 for taking part in the robbery of a Bureau de Change. He had taken part in the planning of this offence by visiting the address three times in July 2018 and had assisted others by taking photographs of the staff. At the time of the robbery he acted as a lookout, along with a number of others, to warn the participants of any police presence.  He was a full participant in this joint enterprise including the element of the assault upon the driver and couriers as he was ultimately responsible for recruiting Mehmood, Nabeel and Kwok to carry out that assault. 

6.  D2, Tang Tsz-chung (AP4 and originally D4), was born on 5 November 1999 and 18 years old at the time of this offence.  He too was educated up to Form 6.  He is single and lives with his father, mother and sibling and was a decoration worker prior to his arrest.  He was of previous good character.  He was arrested on 15 August 2018 and has been on remand since that date.

7.  D2 was approached by D4 on the day of the robbery, and recruited to snatch the suitcase containing the $10,000,000, as well as another suitcase, out of the boot of the car.  Prior to the robbery, he had been seated in the getaway vehicle, which was parked in the vicinity and in which D4, D5 and D6 were positioned.  He waited for the assault to commence and snatched the suitcases from the open boot of the vehicle.  He then ran off with the suitcases but was chased by the driver, PW1, who at this stage had a bleeding head.  D2 turned and kicked the driver forcefully causing him to fall to the ground and suffer further injury.  D2 eventually dropped one of the suitcases but the suitcase containing the HK$10,000,000 was safely taken to the waiting vehicle.  When that vehicle drove off, D2 managed to run off.  On arrest he stated that he had only stolen two suitcases and did not hit anyone.  In his VRI, he said that he had been recruited to steal the two suitcases from the boot of the car for a reward of $30,000.  After the robbery he received a reward of between HK$20,000-30,000 and had been instructed to take the money to the mainland and have it changed into Renminbi before changing it back to HKD in order to use it.  He did not say when or from whom he received this money, nor has it been recovered.

8.  Mr Leung, in his written submissions on behalf of D2, has suggested the injury to PW1 was not caused by his client.  That is not the case.  Whilst Mehmood was the man who wealded the bottle to PW1’s head, it was this defendant, whilst escaping with the money, who kicked the driver with such force that he fell to the ground and suffered quite deep abrasions to his knees and arm.  Not surprisingly he did not advance this point in his oral submissions.  It should also be remembered, that unlike the group who were simply recruited to assault someone, this defendant knew what was to happen.  He knew there was to be a robbery.  He played a full part by being the person to not only take the suitcases but also kicked the driver so as to make away with those suitcases.  It must have been self-evident that the sums involved were large.  He had been waiting in the getaway vehicle during the time when D5 and D6 were discussing what was to happen and therefore before he left that vehicle to play his part, he would have known how events were to play out.  He is fully responsible along with his co-defendants for the harmful effects of this joint enterprise.

9.  D3 Wong Tsz-kin (AP6 and D5)  was born on 17 November 2000.  He was 17 years old at the time of this offence.  He had previously been in trouble with the police just a few months before this offending for theft but had been dealt with by superintendent’s supervision. He was arrested on 15 August 2018 and has been on remand since that date.

10.  D3 had received a phone call on 8 August inviting him to beat someone up on Middle Road for a reward.  He was one of the men who had joined in the attack on the driver and couriers.  The driver was punched and kicked by them and suffered bruises and abrasions to his arms and legs as well as the gash to his head caused by Mehmood.

11.  D4, Tsang Hon-hang (AP10 and D7)  was born on 17 July 1988 and was 30 years of age at the time of this offending.  He had been educated up to Form 3.  He was arrested on 27 August 2018 and has been on remand since that date.  Tsang Hon-hang had only been released from prison on 23 July 2018 under supervision such that less than a month had passed before he committed this offence.  He has a substantial criminal record dating back to 2010 relating to triad activities for which he received a total of 18 months’ imprisonment.  He next appeared before the District Court in April 2011 for blackmail, criminal damage and a further triad related offence for which he received a period of imprisonment of 28 months.  Thereafter, he was before the courts for sex offences in 2016 for which he received a sentence of 3 years and latterly, whilst on remand, for driving matters relating to his role in this matter.

12.  He maintains that he was called at 2:00pm on the day of the robbery and asked to rob an underground bank.  He was recruited to drive the getaway vehicle for the sum of HK$200,000.  He said he had used a vehicle he had purchased, although his brother was the registered owner, and he had gone to Yuen Long to have forged number plates put on it.  He had then driven to Tsim Sha Tsui to pick up Cheng and Chui (D5 and D6 in these proceedings, AP12 and AP13, originally D8 and D9)  and take them to the vicinity of Middle Road, at which point he had been informed by Cheng (D5)  that another group would be carrying the assault.  According to D5, D4 was asked by him to recruit the person who would snatch the suitcase.  This was D2, who sat with D4, D5 and D6 in the vehicle for some while before the robbery commenced.  At about 7:30pm, D4, with D5 and D6 still on board, drove towards the vehicle where the robbery was in progress, at which point D2 ran up to the vehicle and placed one suitcase inside.  D4, D5 and D6 drove off without taking D2 with them.  The three of them went to Castle Peak Road where D4 discarded the false plates and D5 and D6 moved the monies to a rucksack and then threw away the stolen suitcase.  D4 then drove D5 and D6 to Yuen Long where D5 and D6 left with the money.

13.  D4 subsequently learnt from the news that the robbery had involved some HK$10,000,000 and not HK$2,000,000 as he had been told and he unsuccessfully attempted to have his reward increased.  He received HK$200,000 the next day.  He too was advised to launder the money by changing it to Renminbi first.  He advised his brother to scrap the vehicle.

14.  Cheng Yiu-man, D5 (AP12, D8), was born on 8 December 1999 and was 18 at the time of this offence.  He too was educated up to Form 3.  He was arrested on 13 September 2018 and has been remanded to date.  He lived with his parents and siblings at the time of his arrest.  He was dealt with before the Kowloon City Magistrates’ Courts for a matter of theft in 2015 when he was just 15 years old and received probation but subsequently breached that order.

15.  D5 maintains that he received a phone call the day before the robbery, from someone who has not been arrested.  It was D5 who recruited D4 and asked him to be the driver and provide a vehicle.  It was D5 who offered a reward of HK$200,000 to D4.  D5 asked D4 to find someone to snatch the suitcase form the courier’s vehicle.  When D4, D5 and D6 were waiting in the vehicle in the vicinity of Middle Road, D5 was in constant contact with the person who recruited him called Chan.  D5 was in a position to observe the whole course of robbery from where he was sitting.  When they drove off, they went to Castle Peak where they discarded the false plates and suitcase and then to Yuen Long where D6 gave him HK$300,000 from which he kept HK$100,000 and gave D4 HK$200,000.  Chan then instructed D5 and D6 to take HK500,000 each to the mainland and exchanged the money for RMB at which D5 gave that RMB back to D6.  He did not mention the remainder of the money which was in the possession of either D5 or D6.  He says that he spent his HK$100,000 in Macau when he later met up with D6 and Chan.  He does not say who kept the rest of the money.

16.  Chui Chun-yuen, D6 (AP13, D9), was born on 29 January 1987 and was 31 years of age at the time of this offending.  He was educated up to Form 5.  He had a wife and child at the time of arrest which was not until 7 June 2019.  Prior to his arrest he said he worked as a waiter and was trying to obtain a visa for his family to live in Hong Kong.  He has been remanded since 7 June 2019.  He was of previous good character but I note he has another matter outstanding at this time.  Ms Yip tells the court that D6 was motivated by obtaining money to assist in obtaining residency for his wife and daughter.  He was one of the men in the vehicle with D4 and D6 in a position to observe the course of the robbery.  He went with D4 and D5 to discard the number plates and suitcase and he assisted in the laundering of at least part of the stolen funds.  He clearly also knew Chan as they were together in Macau at a later stage.  When he was finally apprehended, D6 suggested that D5 had recruited him although he does not say how they knew each given their difference in age and he suggested it was D5 who had told him what was to happen during the robbery.  He says he was told to stay inside the van at all times and if that is the case, I cannot see what his role was supposed to be. His VRI reads as if he was merely an interested observer with everyone else participating but not he, save for when he disposed of the suitcase on D5’s instructions.  If his version of events is correct, he must have been told what was to happen when he was recruited by D5 and D5 told him what was to happen when in the car.  I do not accept that he was unaware that this was to be a robbery or who it was that was to be robbed.  He has admitted as much by his plea.  He certainly had a prime position to watch events as they happened and he must have known the suitcase for which D2 fought off the driver, contained something of considerable value considering the number of people involved.  Even if he did not see the HK$10,000,000 until the suitcase was opened inside the car, he did nothing to distance himself from these events.  He was the person who gave D5 HK$500,000.  He said he left the Yuen Long car park when they got there and did not mention receiving any money himself.  This is in conflict with the testimony of D5 who says they both went to launder HK$500,000 each that night. There has been no mention of what happened to the remaining monies.  The following day D5 contacted D6 to go to Macau for an ‘all expenses paid’ trip at which point D5 confirmed the robbery had involved HK$10,000,000, despite D6 having seen the money the night before as he helped to put it into the rucksack.  He said that it was only in Macau that D5 gave him just HK$90,000 in cash and he spent it all before returning to Hong Kong.  I understand from Ms Yip that this was because he gave it to his family in the Mainland.  The receipt of HK$90,000 does not explain why he would be given any money at all for apparently doing nothing other than throwing away a suitcase and moving money from the suitcase to the rucksack.

The Law

17.  The leading case for robbery is Mo Kwong Sang v R [1981] HKLR 610 in which 2 defendants broke into private premises, threatened one of the female occupants with a knife and tied her up.  They made off with cash and other valuables.  The Court of Appeal stated:

“…an appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to the victim, should normally be a term of imprisonment of 5 years, which would be increased to 6 years if it also involved an invasion of private premises, and to 7 years if it involved any physical violence on a victim. The suggested sentences are subject to appropriate adjustment for any aggravating or mitigating features.”

18.  Mr Chau SC prays in aid Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312, as the leading case in what he has referred to as ‘head bashing’ robberies.  The rationale for an increase in the sentencing guideline in such cases is premised upon a robber who strikes a deliberate blow to the victim’s head with a weapon capable of causing injury to the brain.  For such cases, the suggested starting point after trial was indicated to be not less than 8 years’ imprisonment.  In Ma Ping Wah, a single defendant hit his victim over the head with a stone inside a public toilet and then snatched a ring.

19.  In HKSAR v Leung Pui & Ors CACC 349/2014, a group of seven men were involved in an attack on the proprietors of a money exchange shop who were followed on their way home from work.  They knocked the married couple to the ground and threatened them with knives although they were not used upon them.  They did however use them to resist arrest and a police officer was injured.  The trial judge in Leung Pui adopted a starting point for sentence after trial of 12 years.  That was adjusted accordingly to take into consideration the particular role and personal circumstances of each defendant.  In terms of planning and execution, the circumstances of that case are not dissimilar to that before the court today albeit no knives were produced nor did the defendants seek to resist arrest and assault the police.

20.  The robbery before the court today was also a carefully planned and well executed robbery of a vulnerable premises for a high reward.  Here too, the defendants had scoped out the various premises.  It was carried out with callous disregard for any innocent victims especially the driver of the vehicle who acted with extreme bravery.  Mehmood, Nabeel and Kwok were recruited specifically to be the assault team.  A coordinated gang robbery, even where that gang could be described as being made up of several groups of individuals, warrants severe punishment.  Whilst the ‘assault team’ were left to their own devices as to how to carry out the distraction required to give effect to the theft of HK$10,000,000, it must have been contemplated by all involved, save perhaps for D3, that violence would be used and weapons of some sort employed.  A defendant does not escape the consequences of his co-defendants acts by attempting to subcontract parts of the overall offending and then maintain that he was only involved in the theft or only involved in the assault.  D5 and D6 were clearly higher up the hierarchy than the others and maintained their distance whilst others did their dirty work.  They may not have been the mastermind of this operation but they stood to gain substantially financially.  D1 was obviously part of this close knit group as he was brought in much earlier than most and he used his skills to scope out the premises and staff.  His reward was by far the largest to which any defendant has admitted which suggests he may have told the truth whilst others have not.  He too must have known what was contemplated and he kept his distance by carrying out the role as a lookout on the day but I do not accept that his role was limited to this and I find that he bears as much responsibility for what occurred as others in the joint enterprise.  Even if D2 and D4 had known little when first recruited on the day itself, there quickly came a point in time when what was envisaged would have been obvious as would have been the target.  D4 recruited D2 and they were both in the car when D5 discussed with D6 what was to happen. This was not a spur of the moment event.  It was days in the planning and the defendants spent hours in the car waiting for the victims to appear.  D3 alone may have had a role more akin to that of the other group who carried out the main assault but he pleaded guilty to knowingly taking part in a robbery and did not withdraw from that joint enterprise when he saw Mehmood bottle the driver.  The only significant factor which distinguishes this case from that of Leung Pui & Ors supra is the fact that weapons were not brought to the scene and knives or guns were not employed.  The only factor which is on a similar footing to Ma Ping Wah is that the driver sustained a head injury.  I therefore consider that the circumstances of this case require a starting point somewhere between the two authorities.  I consider a reduced starting point of 10 years appropriate in all the circumstances of this case.

Sentence

21.  As for D1, Wong Wai-fung Timothy, I have heard what Mr Chau SC has said on his behalf and I note that he was prepared to accept his part in recruiting the defendants under HCCC 138/2020 but he was involved in this robbery from the outset and he appears on the face of it to have been offered the greatest reward for his participation although I very much doubt he was the most senior member of this group or that he received the most from the stolen funds.  It may be that the other participants have not been completely honest about what they received.  But the other participants received their reward on either 8 August or 9 August.  D1 was not arrested until 15 August, which suggests he must have been given his reward within that timescale but he makes no mention of what has happened to it and it has not been recovered.  Mr Chau SC submits that he received several thousands dollars only.  With respect, I do not accept that given what he admitted, what the other defendants received and his role in this offending.  Although young at the time, he had previously been before the District Court for a matter of robbery for which he received a Training Centre Order and he was released under supervision not long before this offending.  He therefore went into this matter with his eyes wide open knowing the risk he was to take and also knowing he was in breach of his CSD supervision.

22.  I intend to adopt a starting point for sentence after trial of 10 years.  I will enhance that starting point by 6 months for the fact that D1 committed this offence having just been dealt with for another offence of robbery and very shortly after release from his Training Centre Order.  I also intend to enhance that sentence by 6 months because he was responsible for recruiting the ‘assault team’ consisting of AP1, 2 and 7 who were the lesser players in this operation.  I also intend to enhance his sentence by a further 6 months for the fact that his reward which he admitted to be HK$500,000 has not been recovered and may still be available to him on his release.  That makes a total of 11 years 6 months.  He is entitled to a full one third discount for his plea at the earliest opportunity.  He will go to prison for 7 years 8 months.

23.  As for D2, Tang Tsz-chung, I have heard what Mr Leung has said on his behalf and I have read the letters submitted to me from him and his family.  He committed this offence out of greed for he was to receive a reward of HK$30,000 and he admitted he received between HK$20,000-30,000.  D2 personally hit out at the already bleeding driver and caused him further harm.  In sentencing him, I also adopt the starting point of 10 years after trial.  There are no aggravating features which suggest I should enhance that starting point.  He is entitled to a reduction of one third for his plea of guilty which makes 6 years 8 months’ imprisonment.  I have been asked to take into consideration the assistance he offered to reduce that sentence further.  He did not offer to assist the police until November 2019, more than a year after his arrest by which time all of his co-defendants had been arrested and no doubt he would have known what they had said to the police.  No further arrests have been made as a result.  His non-prejudicial statement (NPS)  has not been provided to the Court but Mr Leung submits it was in respect of D4 and D5.  D2 was committed to this court for sentencing on 22 June 2020.  He was not interviewed by the police until 17 July 2020, with a view to giving evidence in HCCC 138/2020 against Mehmood, Nabeel and Kwok but as they were all caught on CCTV, as he was, I doubt whatever evidence he could give would assist and in the end it did not.  He was informed on 23 November 2020 that he would not be required to give evidence at the trial, which was eventually held on 29 November 2021.  I have not been provided with the content of the assistance D2 sought to give either by the defence or prosecution as the NPS is in Chinese.  I am therefore not prepared to give any further discount for that assistance.  Tang Tsz Chung will go to prison for 6 years 8 months.

24.  I dealt with D3, Wong Tsz-kin on 2 December 2022.  I listened to what Mr Leung said on his behalf and read the letters placed before me.  He was just 17 years old at the time of this offending and by far the youngest participant.  He had been remanded since 15 August 2018 and was still in custody even though he played a similar role to the three defendants who went to trial and whilst he pleaded guilty at the first opportunity, he is still in prison and they are now at liberty.  His plea of guilty has resulted in his undergoing a harsher sentence therefore than even the person who injured the driver Mr Fung.  I note he is remorseful and has a good future ahead of him if he keeps his head down and continues to study.  I therefore adopted a different approach to sentencing so far as he is concerned because I distinguish his role and the nature of his relationship with the other members of this joint enterprise and seek to deal with him on a par with the other defendants who acted as he did.  I have no evidence he physically hurt anyone on the assault and assume he was there to make up the show of force.  In all the circumstances, I intend to give him the same sentence of 12 months’ imprisonment that the other three defendants received and which included a one third discount for plea.

25.  As for D4, Tsang Hon-hang, I have heard what Mr Yu has said on his behalf and read his letter.  He is one of two mature defendants, who knew full well what he was entering into when he agreed to provide the vehicle for this robbery.  He had only just been released from prison but the reward was significant.  D4’s role was substantial and key to the carrying out of this offence and so I am surprised that it is suggested that he was recruited only on the day.  He organised the vehicle, arranged for false plates, picked up D5 and D6, provided an observation point for others to supervise the robbery and recruited D2.  He also disposed of incriminating evidence and helped some of the defendants to flee the scene.  He received a significant reward of HK$200,000.

26.  In sentencing D4, I also adopt a starting point of 10 years after trial.  I will enhance that sentence by 12 months for the fact that he is a mature man with an extensive criminal record and had only just been released from a term of imprisonment.  I will also enhance it by a further 6 months as he received some HK$200,000 which he benefitted from and which has not been recovered.  He also recruited D2 for which he will receive a further 6 months’ imprisonment.  That makes a total sentence of 12 years.  He will receive a full one third discount for his plea at the earliest opportunity and will go to prison for 8 years.

27.  As for D5, Cheng Yiu-man, I have listened to what Mr Chiu has said on his behalf.  There is a conflict between the mixed statements made by D5 and D6.  Mr Chiu has explained that during a period of just three months immediately before this offending, D5 became involved with someone called Chan and it was he who recruited him to carry out a number of crimes including this one.  Mr Chiu submits that he was young and under the instructions and influence of Chan throughout.  Nevertheless, he admitted recruiting D4 and asking D4 to recruit D2 and he was liaising with Chan throughout the robbery whilst remaining a safe distance away.  He was doing this in the presence of D6.  He admitted to the recruitment of D4 but not to that of D6, which I believe he would have admitted if that had been the case. It may be that Chan recruited D6 separately.  I do not know because D6 is pointing the finger at D5 and not at Chan.  D5 suggests that he received only HK$100,000 from this crime.  I do not believe that version of events as he paid D4, the driver, HK$200,000 and he was clearly higher up the hierarchy than D4 and closer to Chan.  He was also responsible for laundering some of the funds.  D5 has, in turn, sought to point the finger at D6 as being in charge of events that day.  I do not fully believe either of them and, in any event, this is a joint enterprise for which both D5 and D6 are fully responsible for the acts of the whole gang and should receive a similar sentence.

28.  I intend to adopt a starting point after trial of 10 years.  D5 recruited D4 and instructed him to recruit D2 for which I intend to enhance his sentence by 6 months, making 10 years 6 months.  On his own account he received HK$100,000, which has not been recovered for which I intend to enhance his sentence by a further 6 months which makes a total of 11 years.  He will receive a full one third discount for his plea at the earliest opportunity. D5, Cheng Yiu-man will go to prison for 7 years 4 months.

29.  As for D6, Chui Chun-yuen, I have heard what Ms Yip has said on his behalf and I have read the documents placed before me.  I also take account of the fact that he is of previous good character but this is a very serious matter and there is nothing before me to explain why he should have committed this offence.  I am not impressed with the version of events he advanced to the police or through Ms Yip.  I do not accept that he was a foot soldier or that he was some form of bystander to events he knew nothing about.  I accept the version of events given by D5, and find that he was far more involved than he was prepared to accept at any stage including before this Court.  In any event, even upon mitigation advanced, he happily took his ill-gotten gains back to the Mainland for the benefit of his wife and child.

30.  I intend to adopt a starting point of 10 years in sentencing D6.  I believe he was one of the organisers of this crime and more culpable than the assault team.  He distanced himself from the actual events by sitting in the vehicle to observe what was happening.  He also played his part in disposing of evidence, paying D5 and D4 and in laundering the money in the Mainland as well as in spending some of it in Macau and says the remainder went to his wife and child.  I do intend to enhance his sentence by an additional 6 months for the fact that he disposed of, on his own account, HK$90,000, which cannot now be recovered.  That makes 10 years 6 months.  D6 will also receive a one third discount for his plea at the earliest opportunity.  He will go to prison for 7 years.