COURT: The defendant is charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210.
It is alleged that he on 23 December 2019, at ‘Lee Hing Goldsmith & Jewellery Shop’, G/F, at Shanghai Street, Yau Ma Tei, together with five others, namely, Manpreet Singh, Sandeep Singh, Prabhat and two other unknown persons, robbed the shop of 584 pieces of gold ornaments.
The defendant initially pleaded not guilty in the Magistrates’ Courts at the committal proceedings but subsequently changed his plea and informed the court by way of a letter dated 22 December 2022 that he would wish to change his plea to one of guilty.
The date of the letter was before a trial date has been fixed for the case. Hence, the defendant comes before me today for sentence, having pleaded guilty formally to the charge and admitted the Summary of Facts read to him in court.
Facts of the Case
The facts giving rise to this case are as follows:
Two witnesses, PW1 and PW2, were the owners of ‘Lee Hing Goldsmith & Jewellery Shop’ (‘the Shop’).
On 23 December 2019, at around 12.11 pm, when PW1 and PW2 were inside the Shop, six masked men, including the defendant, armed with knives and hammers entered the Shop.
One of the masked males pointed a knife at PW1 and PW2, while his accomplices smashed the glass display cases and grabbed some gold ornaments therein. The robbers fled towards Tsim Sha Tsui after about one minute. No injuries were suffered by PW1 and PW2.
Upon checking, a total of 584 pieces of gold ornaments, with an estimated value of about HK$1.77 million, had been stolen from the Shop.
Later on, Manpreet Singh, one of the persons named in the charge was arrested on 25 February 2020. He pleaded guilty to the offence of robbery and offered assistance as a prosecution witness. According to Manpreet Singh:
(i) He lived with Prabhat at the time of the offence.
(ii) He agreed to rob as suggested by an Indian friend called ‘Singh’.
(iii) At about noon on 23 December 2019, he, Prabhat, Sandeep Singh met up in a park in Yau Ma Tei. The three of them joined three other Nepalese, including the defendant, at about 12.10 pm that day. The 6 of them then went and robbed the Shop.
The defendant was arrested on 21 July 2021. Under caution, he remained silent when he was interviewed by the police.
I have had sight today of the CCTV footage which captured the robbery in question. And I note from that CCTV footage that the defendant in this case was not the one who was holding any weapon; and that he did not inflict any violence upon the witnesses, PW1 and PW2; and he joined the party inside the Shop later than the others; and all he did as shown on the CCTV footage was to deliver one punch to the glass case; and after which he slowly collected some of those gold ornaments inside that glass display case. These form the effectual background upon which the court will sentence the defendant.
The Defendant’s Background
The defendant is now 27 years old. He was born in Nepal and received education up to Class 10 in Nepal. As his father was born and resides in Hong Kong, the defendant began visiting Hong Kong since 2008 and settled here in Hong Kong in 2011. He became a Hong Kong permanent resident in around 2010 to 2011 after obtaining a Hong Kong Identity Card.
As regards his employment, the defendant used to work at the Subway fast food chain from 2012 to 2014. He then went back to Nepal for a year, where he was unemployed, and came back to Hong Kong in 2016. Until his arrest, he worked as a construction worker, earning HK$20,000 per month.
I am told the defendant has four immediate family members who are all living in Hong Kong. His father, aged 54, is a security guard. His mother, aged 53, is a kitchen worker. The defendant has one elder sister and one younger sister, aged 29 and 19 respectively. His elder sister works as a waitress and his younger sister is now studying in university.
The defendant has one criminal conviction record back in November 2015, for which he was convicted of a charge of criminal damage and another charge of resisting a police officer. He was sentenced to rehabilitation centre for those two charges. The court notes that the offences were committed when he was 19 years old.
And in mitigation, Mr Lee asked me to place lesser weight on those dated conviction records back in 2015. And in mitigation, it was submitted by Mr Lee on the defendant’s behalf that he committed the present offence because of financial reasons.
Sentencing Guidelines
The guidelines for sentencing robbery cases involving the use of knives and dangerous weapons (other than firearms), have been clearly set out in Mo Kwong-sang v R [1981] HKLR 610.
As stated by the Court of Appeal in Mo Kwong-sang:
(i) The appropriate sentence for those convicted after trial in an ordinary case of armed robbery not involving firearm, where the accused was carrying a knife or other dangerous weapon which he displayed to the victim, is one of 5 years.
(ii) However, if such a robbery involves an invasion of private premises, which includes both domestic and business premises, a sentence of 6 years would be appropriate.
(iii) If any physical violence is used on any of the victims, for example, tying them up, a sentence of 7 years should be considered.
(iv) If other aggravating factors were present, such as invasions of domestic premises during the night, the presence of more than one person in the group of robbers, threats made to the victims, ill-treatment of elderly persons and children, and a multiplicity of offences of a similar kind, the sentence should be increased.
In accordance with those sentencing principles as set out in Mo Kwong-sang, I note the following features that are present in the present case:
(i) First, the defendant with five others joined together on the day in question, wearing face masks to hide their identities when they committed the offence of robbery at the Shop. This suggests a degree of planning and premeditation amongst the group of robbers.
(ii) Second, the robbery involved an invasion of a jewellery shop which was a private business premises and I add a particularly vulnerable kind of businesses in a trade of luxury items that, as the court’s experience shows, made easy and obvious target for offences such as the present.
(iii) Third, the estimated value of the stolen items as provided in the Summary of Facts admitted by the defendant is one of around HK$1.77 million, which is a large sum of money, in particular noting that the robbery was just committed within the space of a few minutes.
(iv) Lastly, there was a degree of violence used during the robbery, albeit not by the defendant himself but by those co-accused and accomplices who joined the enterprise, causing damages to the display cabinets in the Shop. It has been admitted by the defendant that one of the robbers, albeit not himself, pointed a knife at the owners of the Shop whilst the others smashed the glass display cases and grabbed the gold ornaments inside.
In mitigation, Mr Lee, appearing for the defendant, very helpfully drew my attention to four Court of First Instance sentence matters which concern robbery at either a jewellery shop or watch shop, also premises where luxury items were traded. Those cases include HKSAR v Gurung Sanjan and another [2022] HKCFI 3516, HKSAR v Qin Lewu [2020] HKCFI 3067, HKSAR v Yue Leong Fong and others [2021] HKCFI 3323 and HKSAR v Li Yin Chun [2022] HKCFI 3152. Mr Lee invites the court to adopt a similar starting point for sentences that are adopted in those cases in the region of 6.5 to 7 years’ imprisonment.
Mr Lee also invites me to note in particular that the duration of the robbery in this case was short as the robbers left the jewellery shop in about one minute and that no one was injured as a result of the robbery.
I have carefully examined and duly considered the facts of the cases provided by Mr Lee and take the view that although not a binding authorities, those cases are comparable and are helpful to the court in gauging the appropriate starting point for the present case. In particular, the case of Gurung Sanjan is the one which is more comparable to the facts of the present case.
In Gurung Sanjan, five men, including the two defendants in that case, robbed a jewellery shop. All of them were wearing masks and caps during the robbery. The robbers were in possession of a knife, hammers and an axe which were used to break the display cabinets. One of the defendants in that case brandished a knife, shouted at the staff members, took some rings from the cabinet and put them in a bag which was used to store the stolen goods. The value of the stolen goods was around HK$600,000. No one was injured as a result of the robbery.
I note in passing here the value of the stolen goods that were involved in this case was much higher than that in Gurung Sanjan. Be that as it may, in Gurung Sanjan, the court there adopted 5 years’ imprisonment as the initial starting point for sentence and enhanced the sentence to one of 7 years on account of aggravating features which bear some similarity to those in the present case.
Having regard to the circumstances of the present offence and the submissions made on behalf of the defendant in mitigation, I would adopt an initial starting point of 6 years’ imprisonment on account of the fact that the subject robbery involves an invasion of private premises, a jewellery shop, in this case. Taking into account the other aggravating features, including the fact that the robbery was clearly planned and premeditated to some extent, the fact that there was a group of 6 robbers involved, and that violence was used by one or more than one of the group with weapons and hammers in smashing through the glass display cabinets, I take the view that it is appropriate to enhance the starting point for sentence on account of those additional aggravating features to one of 7 years’ imprisonment. That is the overall starting point that I would adopt for the present case.
Discount for Guilty Plea
Whilst the defendant had pleaded not guilty at the committal proceedings, he had very sensibly through his legal representatives indicated by way of a letter that he would change his plea to one of guilty before the trial has been fixed in this case. As such, I am prepared to give the full 25% discount for sentence in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, bringing the sentence down to one of 63 months, that is 5 years and 3 months. There are no real mitigating factors apart from the fact of the guilty plea at that stage.
Hence, the final sentence that I would impose on the defendant is one of 5 years and 3 months’ imprisonment.