COURT: The defendant, Chu King-shing, Danny, was charged with the following two charges. One, robbery, contrary to section 10 of the Theft Ordinance, Chapter 210, that is Count 1, and carrying an imitation firearm with intent to commit an arrestable offence, contrary to section 18(1) and (3) of the Firearms and Ammunition Ordinance, Chapter 238, and that is Count 2.
The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Admitted Facts
At around 10 pm on 27 January 2020, Mr Ng is the victim. He was a male aged 76 at the time, an employee of the Chevron Hong Kong Company Limited. He returned for the night shift duty at the Caltex Petrol Filling Station at 285 Gloucester Road, Causeway bay. He was the only staff on duty that night, and he checked correct the $2,000 of spare cash in the cashier machine.
At around 12.23 am on 28 January 2020, the victim, PW1, was at the convenience store in the Caltex Petrol Station. At the time, a man in dark clothing later known to be the defendant, wearing also a black mask, came into the petrol station. He walked close to the victim and declared robbery and the victim saw that the defendant was holding a black object appearing to be a handgun in his right hand pointing at the victim. Defendant then put the handgun object back into his right pants’ pocket and told the victim to take out all the money. The victim then opened the cashier machine and the defendant took money away from the box on the left side, where the $100 banknotes were kept. The defendant then left the petrol station.
The victim reported to the police. According to this victim, the company was insured for the loss and the amount lost was later confirmed to be $1,100.
The police later arrived and checked the CCTV footage of the petrol station and it revealed that about eight minutes earlier before the robbery, a person wearing the same clothing as the defendant had come to purchase something.
Then on 13 February 2020, a team of police officers conducted an anti-robbery operation in the Wan Chai area. At around 10.54 pm, a police officer in plain clothes observed the defendant to be of similar appearance of the suspect who robbed the Caltex Petrol Station on 28 January 2020 and this police officer then was walking along Lockhart Road. So he kept the defendant under observation.
The defendant was seen putting on a black mask and a pair of black gloves at Wan Chai Road and continued to walk and turned onto Morrison Hill Road, and there this plainclothes police officer saw there was a police vehicle parked at No 23 Morrison Hill Road and he observed the defendant walking faster than before, and turned into Lap Tak Lane, and then eventually the defendant went to Oi Kwan Road.
So at Oi Kwan Road, the police officers intercepted the defendant, and since the defendant was suspected to be in possession of a firearm, so the officers had their pistols ready. They subdued the defendant, a search was conducted and a black coloured 17-centimetre-long object appearing to be an airgun, that is Exhibit 1, was found in the defendant’s left jacket’s pocket.
Under inquiry, the defendant admitted that he committed the robbery on 28 January 2020 at the Caltex Petrol Station and he was arrested. Under caution, the defendant admitted robbing the petrol station on that day, 28 January, for HK$600.
The defendant further admitted that he was on his way to the petrol station at Canal Road to rob again as he only robbed $600 last time, but he walked away as he saw a police vehicle. So the defendant was arrested and under caution he admitted the gun was a fake one and he knew he needed to pay for his actions. The cautioned admissions were post-recorded in the police notebook and signed by the defendant as acknowledgement.
The item, Exhibit 1, was subsequently examined by a firearm expert, who found that Exhibit 1 to be consisted of an airgun and a magazine. The airgun was a spring-powered airgun designed to discharge 6 millimetre calibre plastic balls and was marked with the words “made in Philippines”.
This airgun was not in working order due to its blocked barrel and no test shooting derivation of muzzle energy could be conducted. As to the magazine, it was suitable to be inserted in the magazine well for the above airgun, and it was to store 6 millimetre calibre plastic balls.
In cautioned video-recorded interviews with the defendant, the defendant admitted among other things that he had picked up the airgun previously in Sheung Wan area. He knew from the first sight of the item that it was a toy gun. He placed it in a flowerbed at Li Chit Street, as it was too dangerous for him to keep it with him. Then at around 11 pm on 27 January 2020, he went to Li Chit Street to retrieve Exhibit 1 and he walked alone to Caltex Petrol Station and he robbed there on 28 January 2020.
He pointed the exhibit at the staff and requested the staff to take out all money. He said he robbed $600 there and he said that the victim even asked to be allowed to keep the spare cash. The defendant said he left the petrol station and went to a supermarket, bought some food and some toilet papers. And after purchasing at the supermarket, he went back to Li Chit Street to put down the toy gun. Then, he slept in a park and he had thrown away the clothes that he wore during the robbery.
The CCTV footage capturing the robbery was shown to him and he confirmed that he was indeed the person who entered the convenience store both before and also during the robbery. He said he went there beforehand to check out the petrol station. And on 13 February, he woke up at the park and he picked up the exhibit and he decided to take the tram to Canal Road to rob the petrol station again. As he was on his way, he saw a police vehicle so he took a detour to Oi Kwan Road to wait for a better time to rob that petrol station later. He said he targeted petrol station as it had less people there and he said he also prepared the gloves with him as he did not want to leave behind his fingerprints.
CCTV footages of the particular petrol station showed that at the material time, defendant entered into the convenience store first to buy something and about eight minutes later, he came again and showed Exhibit 1 to the victim. Then, the victim opened the cashier machine, defendant walked into the cashier area and took some money.
The situation did not appear particularly tense, as the victim could persuade the defendant not to take all the money and to leave some behind. The victim was also seen putting one arm around the defendant’s waist when he was trying to persuade the defendant.
So before the magistrate, the defendant admitted and accepted that at the material times, he robbed the victim at the petrol station with the use of the Exhibit 1 and also at all material times he had with him Exhibit 1, which was an imitation firearm, with intent to commit robbery. So those were the Admitted Facts.
Background
The defendant is aged 56, born in Hong Kong in 1964. He received education up to Form 1 level and he had worked as a transportation worker between 2016 and 2017. He was unemployed at the time of the offence.
The defendant is not a man with a clear record. He appeared in court 17 times amassing some 34 previous convictions. Now, leaving aside the conviction for loitering, causing wasteful employment of police, gambling-related offences, the defendant had a number of theft-related convictions. There were three robberies, nine thefts, three false instrument and the defendant also has four triad-related convictions and five blackmails and criminal intimidation. In addition, the defendant also had previous convictions of criminal damage and common assault.
The defendant’s criminal career spanned from 1984 when the defendant was 20 years old to last year, 2020. The last offences on record were two charges of theft and the defendant was sentenced to 4 months’ concurrent imprisonment on 15 February 2020.
As the present offences were committed on 28 January 2020 and 13 February 2020, the defendant committed the present offences while on bail for the other two theft charges.
Authorities submitted by the prosecution
The prosecution submitted the following sentencing authorities for my consideration. Three authorities concerning the offence of robbery with the use of imitation firearm, they were R v Yu Tai Wing [1995] 2 HKCLR 119, the second one is HKSAR v Mak Chi Ho (unreported, CACC 290/2007) and the last one is Secretary for Justice v Lee Chun Ho, Jeef [2010] 1 HKLRD 84.
There is one authority concerning the offence of possession of firearm with intent to commit an arrestable offence, that is the Attorney General v Lam Wing Kwong [1993] 2 HKCLR 227 and one authority on the aggravating factor of committing offence while on police bail and that is HKSAR v Cheong Man Kit, again unreported, CACC 394/2017.
Authorities submitted by the defence
Mr Bernard Yuen, counsel for the defendant, sought to distinguish the present case from those relied on by the prosecution and also in support of the defence submission, submitted the following three authorities. The first one is HKSAR v Mateluna Araya Hugo Pedro and Others, that is unreported, CACC 369/2019, the second one is HKSAR v Zeng Xiangji, again unreported, CACC 403/2009, and the last one is HKSAR v Huang Shuai (unreported, CACC 297/2013).
The first case of Mateluna Araya dealt with the totality principle and the offences involved in that case were thefts, not the same as the offences in this case. The other two authorities dealt with robberies with the use of imitation firearm.
Mitigation
Mr Yuen referred to the case of Lee Chun Ho, Jeef in which the Court of Appeal explained why robberies with the use of firearm was particularly hideous because of the fear caused to the victims and the chance of law enforcement officers resorting to use their own, thereby exposing the public to serious risks of death or personal injuries. On the spur of the moment, neither victims nor law enforcement officers may appreciate that the item was an imitation firearm, therefore little difference should be made between an imitation firearm and a real firearm. The Court of Appeal had consistently adopted a starting point of 10 years for robbery involving the use of imitation firearm.
Mr Yuen referred to the Admitted Facts in the present case and submitted that the circumstances of the present case were that the victim in the robbery was not put in fear for any extensive period. The defendant pocketed the gun-like object after pointing it at the victim and having declared robbery. The atmosphere was not tense and the victim succeeded in persuading the defendant not to take all the money.
Mr Yuen’s submission was in effect that the robbery committed by the defendant was far less serious than those robberies which involved jewellery and goldsmith shops, banks, or people seen leaving banks with large sums of money, or where the victims were put in fear for a prolonged period, or with the imitation firearm looking real. He submitted that this Court should look at a starting point lower than 10 years in the present case.
Mr Yuen referred to the description of the imitation firearm by the expert as disclosed in the Admitted Facts. He also asked this Court to view the gun-like object. He said that the end of the barrel was obviously melted, damaged and blocked, and was clearly a fake gun which was not functional and that explains why the defendant put it back into his pocket after showing it briefly to the victim. The chance of the defendant using it or showing it to any other person or law enforcement agent was practically zero.
Mr Yuen also submitted that the defendant made frank and spontaneous admission at the first opportunity for both charges even before learning what evidence the police had against him. The defendant had also made full confession as to what he intended to do with the imitation firearm in relation to Count 2.
Mr Yuen urged this Court to consider all the factors mentioned in consideration of the sentence. As there are two counts involved, Mr Yuen also prayed in aid the authority of Mateluna Araya regarding the principle of totality. Mr Yuen does not quarrel that as the defendant had committed the present offences while on bail, that was an aggravating factor to enhance the sentence.
Consideration of the sentence
A person convicted of robbery on indictment is liable to be sentenced to imprisonment for life. And there is no quarrel that when a robbery is committed with the use of a firearm, the sentence to be imposed is to be a heavy one.
In the much quoted case of Yu Tai Wing, that is the one relied on by the prosecution here, the Court of Appeal held that for bank robberies, jewellery shops and goldsmith shops robberies, security van or payroll robberies and the like, no distinction should be made between cases where genuine firearms are used but not discharged and those in which an imitation firearm is used. A distinction also exists between robberies mentioned above and those carried out by an opportunist sole robber with the use of an imitation firearm in a public place, with no injury caused to the victim. The sentence for the latter should be considerably lower than the sentence for a robbery of the first type.
So in the case of the Yu Tai Wing itself, Yu, who was a policeman, kept watch of customers who withdrew money and waylaid the female victim outside the bank, threatened her with an imitation firearm and robbed her of her bag of money. He panicked when the victim gave chase, dropped the bag and the imitation firearm and was overpowered. The trial judge was of the view that a starting point of 12 years was appropriate for the robbery. He however reduced the 12 years to one of 10 years to take into account the additional hardship to be faced by Yu, who was a policeman, in prison and the trial judge adopted 5 years for the possession of an imitation firearm charge, both sentences to run concurrently.
The Court of Appeal was of the view that a starting point of 12 years was manifestly excessive. While the sentence of 5 years was appropriate for the possession of firearm offence, an overall starting point of 10 years after trial was appropriate.
Applying the totality principle and taking into account Yu had completed 20 years of unblemished service as a policeman and that he had acted out of character, the Court of Appeal was of the view that an overall sentence of 8½ years was called for. So the appeal was allowed and consecutive sentences of 5 and 3½ years were imposed instead.
In the case of Mak Chi Ho, Mak pleaded guilty to one count of robbery and one count of attempted robbery, both involving convenience stores. Mak was sentenced to 6½ years for each count, with 3½ of Count 2 to run consecutively to the 6½ imposed on Count 1, making a total of 10 years’ imprisonment. On appeal, the Court of Appeal observed that the offences were committed in the early hours of the morning by Mak alone, with him pointing a convincing imitation firearm at the counter staff when he declared robbery.
In the attempted robbery, the female staff was so scared that she was unable to comply with Mak’s demand for money so he left empty-handed. The Court of Appeal was satisfied that the trial judge imposed proper sentences for both offences. The sentences imposed were not wrong in principle nor manifestly excessive.
In the case of Lee Chun Ho, Jeef, Lee robbed a woman shortly after midnight, pointing an imitation firearm at her and snatching her knapsack. The victim gave chase and shouted robbery. A passer-by, X, tried to intercept Lee. Lee pointed the imitation firearm at X and said “Don’t chase after me or I’ll fire at you.” X made a report to the police while he and the victim continued to chase Lee. Two off-duty police officers joined in the chase and Lee dropped the imitation firearm and the knapsack before being arrested.
The trial judge adopted a starting point of 6 years for the robbery using imitation firearm and the offence of using imitation firearm with intent to resist or prevent lawful arrest, reducing the sentence by one-third for the guilty plea, and a further 6 months for plea and cooperation with the police and the trial judge ordered both sentences to run concurrently.
As Lee was already serving a sentence for theft and common assault and he had committed these offences while on bail, the Secretary for Justice sought a review of the sentence. The Court of Appeal stated that the appropriate starting point for robbery using imitation firearms was 10 years’ imprisonment. The sentence imposed were manifestly inadequate. The sentences were increased to 6½ years. As these offences were committed while the defendant was on bail, the Court of Appeal said there was no reason not to order the 6½ years to run consecutively to the 13-month sentence Lee was already serving at the time of sentencing.
In the case of Cheong Man Kit, Cheong committed the offences of theft and burglary while he was an absconder and a wanted person, having failed to answer his bail condition to report to the police in relation to another case. The Court of Appeal said that it was a seriously aggravating factor that warranted appropriate enhancement to the starting point of the offence in question.
In the case of Zeng Xiangji, Zeng robbed a jewellery and goldsmith shop with the use of an imitation firearm. Zeng pointed the imitation firearm at one of the female staff, causing her fear. Zeng put two gold necklaces with pendants valued at around $50,000 onto himself before pocketing the imitation firearm and left the shop. The trial judge adopted a starting point of 15 years and reduced it to 10 for Zeng’s plea.
On appeal, the Court of Appeal was of the view that as Zeng acted alone in one incident, and he did not use any other weapon to threaten the victims nor did he use any force, no one was injured and the value of the property robbed was not particularly high, the starting point of 15 years was manifestly excessive. The starting point was reduced to 12 years and the sentence was reduced from 10 to 8 years.
In the case of Huang Shuai, the victim was parking his car inside a carpark when he heard a sound similar to that emitted by an airgun. He then noticed Huang had entered his car and sat next to him. Huang was holding something like a gun in his right hand and a magazine box for bullets on his left. He demanded the victim to take out all the money. The victim was very scared and he told Huang that Huang was sitting on the wallet with the money. So Huang then took $2,000 from the victim’s wallet and threw the wallet down.
A friend of the victim happened to be also parking his car and saw the victim. This friend then approached the victim with another friend and they both saw the robbery. The two men then pushed the door of the car to stop Huang leaving. However, on noticing the gun-like object in Huang’s hand, they backed away and Huang ran away. Huang was later arrested.
A plastic bullet was later found inside the victim’s car after a report was made to the police. The trial judge adopted a starting point of 12 years and reduced it to 8 years for Huang’s plea. The Court of Appeal did not disturb the sentence.
In the present case, the defendant targeted a lone employee at a petrol station late at night. Unlike a bank, jewellery shop or the like, there would not be huge sums of money or valuables in a petrol station. I have seen the imitation firearm in question as requested by Mr Yuen. I agree with Mr Yuen that the tip of the barrel was obviously melted or damaged. I also noted that one can clearly see that the object was made of plastic.
I have also viewed the exceptionally clear and coloured CCTV footage of the incident, which not only recorded the movements, but also the sound, the conversation between the defendant and the victim. The defendant can be seen to show the gun-like object to the victim in a rather casual manner and he very quickly pocketed the object after showing it. No doubt the defendant wished the victim to believe that he had a gun but not wanting the victim to see the object too clearly.
From the demeanour of the victim, it can also be seen that he did not appear to be frightened and while the defendant was taking the money from the till, there was some casual bantering between him and the victim and the victim also managed to persuade the defendant not to take all the money and can also be clearly seen, the victim put his hand around the waist area of the defendant while persuading him.
Having considered all the circumstances, I agree with Mr Yuen that the case is not as serious as those cited and a starting point of 10 years is not warranted for the robbery. Having considered the sentencing guidelines for robbery with weapons such as a knife but excluding firearms in the case of Mo Kwong Sang v R [1981] 1 HKLR 610, I am of the view that a starting point of 7 years is appropriate.
The defendant is not a first offender. Of 17 appearances in courts, he had a total of 34 convictions spanning from 1984 to 2017 and there was a gap of 5 years between his convictions. There was a gap between 2012 and his last conviction in 2017.
Now, the defendant committed the robbery while he was on bail for another case, which is an aggravating factor. I understand the defendant was arrested in 2018 for the shop theft and he jumped bail for over a year until he was arrested in February 2020 for the present case. So I will enhance the 7 years’ starting point by 9 months to take into account the defendant’s bad record and the fact that he committed the present offences while on bail. So the enhanced starting point is therefore 7 years and 9 months.
The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. So for this offence, the sentence is one of 5 years and 2 months.
Now, Count 2, carrying an imitation firearm with intent to commit an arrestable offence. A person convicted of this offence on indictment is again liable to life imprisonment and this offence normally attracts a sentence of 5 years (for example see the case of Yu Tai Wing).
Bearing in mind the imitation firearm in question does not really look like a genuine gun, I am of the view that a starting point of 3 years is appropriate. As I have already enhanced the starting point for the robbery charge, I will not enhance the starting point for this count for the same aggravating factors to avoid doubling the sentence. The defendant is also entitled to a full one-third discount for this offence, so the sentence is therefore one of 2 years.
These two offences did not take place on the same day. The robbery took place on 28 January 2020 while the Count 2 happened on 13 February 2020. So it would therefore be wrong in principle to order both sentences to run concurrently. I will have to consider the totality principle to decide what the overall sentence should be to reflect the criminality involved.
Now, having considered all the circumstances, I am of the view that an overall sentence of 6 years is appropriate for both offences.
So the actual sentence. Count 1, 5 years and 2 months’ imprisonment; Count 2, 2 years’ imprisonment, 10 months of which to run at the expiration of the 5 years and 2 months’ imprisonment imposed on Count 1, then making a total of 6 years’ imprisonment.