CRIMINAL CASE NO. 282 OF 2010
COURT: This accused pleaded guilty at committal on 28 August 2010 to one charge of robbery, contrary to section 10(1) and (2) of the Theft Ordinance. Today he confirmed that plea, and also confirms admission of the facts which had been put before him at committal.
Those facts show that he, together with a male companion who is not before the court, robbed the female proprietor of the Foot Reflexology Centre of two necklaces, a pendant, a diamond ring, a gold waist chain, a Rolex watch, an HSBC credit card, two ATM cards, cash of HK$50,000, and two mobile telephones.
The accused was an ex-employee of the victim, from whom he had borrowed money. On the day of the robbery he visited her, ostensibly to discuss repayment of the loan. The Reflexology Centre had closed for the day, and no other staff were present.
While the accused was there, a male companion of the accused, who had entered separately, posing as a customer, pointed a knife at the proprietor and declared a robbery.
The proprietor was pushed into a room, pushed to a massage couch, and strapped to it with cable ties. She had her hands tied. She was blindfolded with adhesive tape.
The premises were searched. The victim heard the sounds of ransacking, and felt someone removing her jewellery and watch. She was asked for the passwords of her credit and ATM cards, and threatened that she would be stabbed to death if she gave a false password. Despite that threat, she did give a false password. After she had done so, her mouth was taped. The victim struggled once or twice while being tied and blindfolded, and was told she would be killed if she made any noise.
After a while, the victim realised that the robbers had gone. She managed to take the tape from her mouth and cut the ties from her legs. She kicked at the metal gates to alert the security guard, and a report was made to the police. The victim was found to have sustained bruises to her wrists and right ankle, and on checking, she found that the robbers had taken the items that are listed in the particulars of the charge.
The Immigration Department travel records show that the accused left Hong Kong for the mainland through the Lok Ma Chau Control Point at 11.47 pm on 27 May 2008. The accused was put on a Stop List and arrested on his return to Hong Kong on 6 May 2010, two years later.
In a video-recorded interview, the accused admitted committing the robbery. He said he had sold the jewellery for HK$70,000, but had spent all the money. He said he returned to Hong Kong to surrender to the police.
Although I accept that the defendant may have intended to surrender to the police, this is not a case where it is only through his surrender and admission that the offence could be dealt with. He was known to the victim, so his identification was almost assured if he was arrested.
The accused has a criminal record which starts in 1984 with two robberies. There was a further robbery in 1989, dealt with in District Court, for which he was sentenced to 4 years’ imprisonment. There were two further robberies in 1997 which were dealt with in the High Court, and for which he was sentenced to 3½ years’ imprisonment. He has convictions for various other offences of dishonesty: theft; giving information to a pawnbroker and handling stolen goods; he was also convicted of being a member of a triad society.
In mitigation I was advised that the accused came to Hong Kong when he was aged 10 years old. He was educated to Form 2 level and then went out to work at various jobs. He has a mother aged 64 who lives alone in Hong Kong and does not work.
In mitigation it was urged on me that the victim sustained only very minor injuries and that although she had been tied up, gagged and blindfolded, there was no actual assault apart from the assault involved in those activities.
The defendant, through his counsel, advised the court that he met the wanted person at a mahjong game, and it was he who suggested the idea to commit this offence. As the defendant was in need of money and had debts, he agreed to rob the victim. He said that the victim did give them the password, but there was no attempt to withdraw the money. In fact, the victim said that she gave a false password, so they could not have obtained money in any event.
The maximum penalty for robbery is life imprisonment. The guideline case for sentence is Mo Kwong Sang, which sets 5 years as a starting point where the accused carries and displays a knife, with upward increases for aggravating factors, including invasion of private premises, the use of physical violence, threats, and the presence of more than one perpetrator.
This was a planned robbery of a vulnerable business committed by an ex-employee who knew how the business operated, together with an accomplice. A knife was displayed and threats to kill were made. The victim was manhandled, tied with cable ties, and had her mouth and eyes taped. She was made to disclose her passwords. A substantial hand of jewellery and cash was obtained, and no property or money has been recovered.
The victim sustained bruises to her wrists and right ankle while trying to free herself.
I note that the accused left the Territory for two years.
All those matters combined can bring the starting point for sentence from the basic sentence of 5 years up to 10 years’ imprisonment.
The only mitigating factor in this case is the plea of guilty, for which I consider the accused is entitled to some, but not the full one-third, discount on sentence.
In the ordinary course of events, an offender who enters a timely plea of guilty is entitled to a discount which at present is one-third. There are, however, instances where it is recognised that circumstances are such that no discount for plea should be given; for example, where the facts of the charge are so serious that discount is not warranted, or that a reduced discount for plea is appropriate where the offender has absconded in the course of the trial, for instance.
Reasons to justify adopting either course are required from the judge. This case, in my view, is one where a full one‑third discount should not be given. The accused, who was known to and identifiable by the victim, decamped to mainland China and stayed there for two years. The police investigation had to be put on hold indefinitely, and the accused placed on the Stop List, with inconvenience to both the police and Immigration. The longer the accused stayed outside Hong Kong, the higher the risk that the potential witnesses would forget their evidence, disappear, or die, thus ensuring that the offences were never actually dealt with.
In this case I take a starting point of 10 years. I consider that the discount for sentence should be 20 per cent only, to take those matters into account.
I sentence the defendant to 8 years’ imprisonment.