HKSAR v. LAM MAN CHUNG AND OTHERS

HCCC 65/2023

[2023] HKCFI 2744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 65 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The four defendants, Lam Man-chung, Lee Ho-yin, Sin Wing-pan, and Fu Chun-wai, are jointly charged with one count of conspiracy to rob, contrary to section 10(1)  and (2)  of the Theft Ordinance, Cap 210, and sections 159A and 159C of the Crimes Ordinance, Cap 200. They pleaded guilty before a magistrate and were committed to the Court of First Instance of the High Court for sentence.

The admitted facts disclosed that a robbery took place on 10 September inside the Tin Yan Jewellery Company Limited, located at Tseuk Luk Street, San Po Kong. At the time of the robbery, the owner, Mr Chung was inside the back office while his three staff members were at the front area of the shop. CCTV cameras were installed inside the shop.

At around 10.35 in the morning on that day, there were no customers inside the shop. A dark private car, Car 1, affixed with a front plate of PA9557 and a rear plate of RG2309 stopped at the roadside outside the shop. Three males, who were wearing surgical masks, caps, and gloves, stormed into the shop. One of them was holding a machete and a nylon bag, declared robbery and told the staff not to press the alarm. Then, he told the other two males, both holding a sledgehammer, to smash the glass display counters and they did accordingly.

They stole a total of 570,000-odd worth of gold ornaments, including gold necklaces, gold bangles, and gold wrist chains, and stuffed them into the nylon bag. Mr Chung, at the back office, called police on seeing this. And after about a minute, the three males jumped into Car 1 driven by another person, a fourth male, and fled towards Choi Hung Road direction.

In the course of the robbery, a display counter and 30 gold rings were damaged. The cost of repair was about 50,000. Together with the stolen properties, the total loss for the shop was $622,594. Also, two sledgehammers, 10 and 12 pounds, were left behind in the shop.

CCTV cameras installed in the vicinity of the shop and along the escape route of Car 1 after the robbery revealed that, first, Car 1 had first appeared at Tseuk Luk Street about 20 minutes before the robbery. The car was seen circled in the vicinity of the shop four times until it ultimately stopped at about 10.36 am, when the three males were seen alighting from the first car and stormed into the shop to rob it for about a minute and eight seconds.

CCTV cameras also revealed that after the robbery, the three males boarded Car 1 to flee towards Choi Hung Road direction. Car 1 then went to Anderson Road, Sau mau Ping, at about 10.56 in the morning. About a minute later, a white box truck, LV304, I call it Car 2, followed by a seven-seater were found leaving Anderson Road towards On Sau Road. Meanwhile, two males appeared to be the second and the third male in different outfits left Anderson Road on foot towards On Sau Road.

On the next day, Car 1 was located at Anderson Road. Upon investigation, Car 1 was found to be formally registered under the registration number RG2309, that is, the rear number plate. Under a car rental company where the company staff confirmed that Car 1 was rented to a male named Yeung Man-kei since 7 July 2020. Rental period had been extended and paid until 10 September 2020. On 10 September 2020, there was a request to further extend but no rent has been paid. The front number plate PA9557 that was affixed to Car 1 was registered for another car. Subsequently, Car 1, being discovered at Anderson Road on the next day, was confirmed to be the one rented out to Yeung.

Upon inquiry, Car 2, that is, the white box truck LV304 was found to be solely used by the 1^st defendant for transportation work. On 18 September 2020, police officer located Car 2 in Sheung Shui. An ambush operation was mounted and the 1^st defendant was arrested when he approached Car 2. Under caution, the 1^st defendant said, “I knew ‘Ah Kei’ and his people went to rob a goldsmith shop. I only wanted to earn some transportation money, so I drove them away.”

On 19 September 2020, the 1^st defendant agreed and led the officers back to the route where he drove Ah Kei and the other male in Car 2 on 10 September 2020 from Anderson Road to various locations in Tuen Mun. During the route revisit, the 1^st defendant pointed out to the officers the various locations:

(i)  Where Ah Kei and the other male were picked up;

(ii)  Where they had thrown away the machete;

(iii)  Where they had alighted Car 2 to burn items;

(iv)  Where they had thrown away white gasoline; and

(v)  Where they were dropped off and left eventually.

At the end of the route revisit, officers seized burnt items, including red-white-blue bag, jewellery trays, gloves, and clothes along that route.

Upon investigation, the 2^nd defendant was identified. On 6 October 2020, he was arrested. Under caution, he said, “The 3^rd defendant introduced me to borrow money from money lenders. I cannot repay. He made me to help him to rob the goldsmith shop to repay the debt. I did not want that.”

On 7 October 2020, the 3^rd defendant was arrested. Under caution, he said, “I only introduced the 2^nd defendant to others to rob a goldsmith shop. I did not take part.”

Upon investigation, the 4^th defendant was identified and he was arrested on 14 October 2020. Under caution, he said, “Ah Sir, that case of robbery, I only received from others $30,000 to help others to do it.”

Other than the admissions upon arrest, subsequent video-recorded interviews with the defendants disclosed, first, in the video-recorded interview with the 1^st defendant, he admitted, inter alia, first, in late August 2020, he was asked by a friend named Ah Kei to be the driver when Ah Kei went to commit robbery. On the first two occasions, Ah Kei asked him to stand by to drive him for a reward of $1,000. But after having waited for some time, Ah Kei did not show up and no longer needed his service. He then received money transfers of $1,000 as reward after each failed attempt.

A few days after the second failed attempt, arrangement was made for him to meet up with Ah Kei. Ah Kei having told him that he was going to commit robbery. Ah Kei eventually drove to the meeting place at Anderson Road with three others. Only Ah Kei and another unknown male with a red-white-blue-bag, two backpacks, and a bag of spare clothes for about three persons boarded his car, that is, the white truck. The other two persons did not board the car, but left.

Whilst driving, 1^st defendant knew that Ah Kei had just committed robbery at a goldsmith shop as he saw Ah kei and the other male took out three to four trays of gold ornaments from the red-white-blue bag, and they put the gold ornaments into the backpacks. He also saw a machete was being taken out from the red-white-blue bag.

Ah Kei then described how he drove Ah Kei and the other male to various place where the two disposed of items, such as the machete, the red-white-blue bag, etc. Finally, Ah Kei and the other man alighted at a bus stop and he continued with his own work that day.

1st defendant said someone deposited $2,000 into his account the same night and he suspected the money came from Ah Kei.  Ah Kei also called him, telling him not to contact him and to delete all WhatsApp records. 

In the subsequent cautioned interview with the 2^nd defendant, he admitted, inter alia, in about April 2020, he worked at a finance company, where he acquainted D3. He asked the 3^rd defendant if there was any part-time job to earn money as his income was low due to poor work performance. The 3^rd defendant introduced him to borrow money from money lenders.

In a few months’ time, the 3^rd defendant took him to seven to eight money lenders to borrow money, and he borrowed about $80,000 to $90,000. However, he could not repay the debt of about $140,000 to $150,000, interest inclusive, as the 3^rd defendant also later deceived him further and took away his borrowed money. He asked the 3^rd defendant again if there was any job the 3^rd defendant could refer as he was desperate. 3^rd defendant told him about a job of robbing a goldsmith shop with a reward of $50,000 to $60,000. 3^rd defendant told him that he only needed to go inside the goldsmith shop to smash glasses. He agreed to take the job.

Later, a call with mainland caller ID phoned him. The person on the call told him about the details of the intended robbery. At first, that person told him that the robbery plan was being considered since mid-August. He was told that he would be contacted by the leader a few days before the robbery.

On about 5 or 6 September 2020, he met up with the first male and a male later known to be the driver. Later, the driver (the fourth male)  drove Car 1 to take the first male and him to a place to wait for another person to join in. Prior to being picked up that morning, he knew that he and another robber were to use hammers to smash glasses in the robbery.

After picking up the fourth person, the group then went to somewhere near hillside to start preparing for the robbery, including changing license plates, bringing hammers from the boot to inside the car. Afterwards, they went to the subject goldsmith shop in Tsuen Wan. However, after taking a few rounds at the vicinity, they saw a police vehicle there, so they eventually called off the robbery plan on that day.

Since a few attempts to go robbing in Tsuen Wan failed, they then decided to change the location to San Po Kong. On 10 September 2020, he was picked up again by the first male and the fourth male and the other robber. They headed to San Po Kong direct as the getaway vehicle had already changed license plates.

Arriving at San Po Kong, the vehicle drove at the vicinity for a few rounds until seeing an originally parked police vehicle left. However, the goldsmith shop that they intended to rob was closed, so the first male changed the plan to rob the shop instead. 2^nd defendant, the first male and the other robber with hammer alighted from Car 1. They went into the shop and started smashing display counters and robbing the gold items there. After taking the gold items, they left the shop and boarded Car 1. The fourth male then drove them away.

Car 1 then left the vicinity and they eventually stopped somewhere in Kowloon. The first male told him and the other hammer-robber to pass him the bag of gold items and to change the license plate of Car 1. He and the hammer-robber also changed clothes in Car 1 as he was told to bring some spare clothes prior to the robbery. After changing clothes, he and the other hammer-robber left that place themselves. As to the first and the fourth male, they boarded another vehicle to leave.

2nd defendant said he did not receive the promised reward of $50,000 to $60,000 because the 3^rd defendant told him that the proceeds of the robbery was only about $250,000, which was too little to be shared.  3^rd defendant told him that after sharing, 3^rd defendant’s superior only got about $20,000, and if the money was further split, he would get less than $10,000. 

2nd defendant continued to negotiate with the 3^rd defendant on the reward to be paid to him for a few days, but to no avail. So he told the 3^rd defendant he had secretly taken three gold bracelets when he robbed the shop. He asked the 3^rd defendant to help him find a place to melt the gold bracelets and sell them for money as he needed money to repay the money lenders. In about mid-September 2020, he met up with the 3^rd defendant to pass him the gold bracelets. However, the 3^rd defendant later told him that the gold content in the three bracelets was too little, so no one would purchase that. At the end, he did not receive any money for the robbery or for the three gold bracelets that he passed onto the 3^rd defendant.

In a subsequent cautioned interview, the 3^rd defendant admitted, inter alia, on 1 or 2 September 2020, his superior asked if he could join in robbing a goldsmith shop. He declined. His superior further asked him to introduce others to commit the said robbery and he agreed. Then, his superior passed his number to other persons, who contacted him to meet to discuss in detail and the reward for him as a middleman. At that time, 2^nd defendant, a former colleague, told him that he was poor, so he introduced the 2^nd defendant to his superior for the goldsmith shop robbery. D2 asked him what he needed to do in the robbery and he told D2 that D2 needed to take a hammer to smash the display counters at the goldsmith shop. 2^nd defendant was promised a reward of $60,000 to $70,000.

On or about 4 September 2020, he met with two unknown males outside MTR Tai Po Market station in the small hours. He asked for a middleman fee of $10,000 as a reward to introduce someone to join the robbery plan. In that discussion, it was agreed that the person being introduced, ie, the 2^nd defendant, would get 15 per cent of the total proceeds from the robbery.

On 6 September 2020, the first male called him as the first male thought he would be joining as a robber. After the call, he saved the first male’s number in his phone as “仆街刀仔”. On the same day, the first male sent him a message of “大埔錦山村三多雞髀” and informed him of the meeting place for the goldsmith robbery.

On 10 September 2020, 2^nd defendant told him that the goldsmith shop robbery was completed successfully. 2^nd defendant asked about his reward. He further asked his superior about it and the superior said it would take a few more days. Also on 10 September 2020, he provided his own bank account number to one of the two unknown males that he met at Tai Po Market station before for them to pay him the rewards from the robbery.

On 11 September 2020, 2^nd defendant asked him to help re-selling three gold bracelets that D2 had taken from the shop. He did as requested and sold those gold bracelets for $9,000 at a goldsmith shop in Tsuen Wan. On the same night, he transferred $2,000 to the 2^nd defendant.

On 15 or 16 September 2020, 2^nd defendant said he was poor and asked for some more money. He further gave the 2^nd defendant $800 cash. He spent the remaining $6,200 from the proceeds of the sale of the three gold bracelets. As to the middleman fee, he had not received it from his superior.

In the subsequent cautioned interview with the 4^th defendant, he admitted, inter alia, that in early September 2020, he was recruited by a casual friend on WeChat to do a job to earn quick money. As he was in need of money, he agreed.

On 9 September 2020, the male contacted him again to provide him more details of the robbery, which would be committed on the next day. He was also told to bring a set of spare clothes to change.

On 10 September 2020, the 4^th defendant met with the driver of Car 1 as well as the other two robbers with a machete and a hammer. Inside Car 1, he saw a hammer there already. He was instructed to take a hammer as well and along with the other robbers.

Arriving outside the shop, they alighted from Car 1 and rushed into the shop. He was instructed to smash the glasses of the display counters, and they robbed the shop by taking the gold items from the counters and placed them in the red-white-blue bag.

After the robbery, they fled in Car 1 which went to a hillside area and stopped. He and the other robber using the hammer left on foot whilst M1 and M4 boarded another truck and left. He then went home at about 1 to 2 pm that day. On the same night of the robbery, M1 called him out to pass him $30,000 reward in cash.

A person convicted of robbery upon indictment is liable to imprisonment for life. In Mo Kwong Sang, the Court of Appeal set down guidelines for robberies involving the use of knives and other dangerous weapons, but excluding firearms. The Court of Appeal said in an ordinary robbery where the robber display a knife or other dangerous weapons to the victim, 5 years is the correct sentence. If there are other aggravating circumstances, including more than one person taking part, the sentence should be increased.

In the case of HKSAR v Limbu Binod, CACC 64/2021, Zervos JA said:

“In robbery cases, a sentencing court, when assessing the starting point to be adopted, will take into account aggravating factors or features that reflect the gravity of the offence and the culpability of the offender, such as the circumstances and location of the robbery, the target of the robbery, the degree of planning and execution involved, the level of force or violence, the extent of the injuries sustained by and impact on a victim or victims, the nature and use of a weapon, the number of offenders, the use of clothing to disguise the identity of the offender, and finally the items or property taken.”

The conspiracy involved robbing jewellery shop by a gang of robbers. The robbery was well-planned. A rental car was used to convey the robbers to the jewellery shop. The robbers having first changed the registration number of the car to mislead and hinder investigation. All the robbers wore surgical masks, caps, and gloves to disguise themselves and to avoid leaving fingerprints. They all carried a weapon, one with a machete to threaten the staff, and the other with sledgehammers to smash the display counter.

After the robbers reached the agreement to rob, there were instances of aborted attempts. Eventually, the successful robbery took place on 10 September 2020 in San Po Kong, a very busy district. The robbers robbed the jewellery shop of $572,000-odd worth of gold ornaments before fleeing. Apart from those stolen items, the robbers also damaged the display counter and some 30 gold rings were damaged, necessitating repair in the sum of $50,000. Hence, the total loss to the shop was $622,000-odd.

One of the robbers held a machete to threaten member staff, which no doubt scared them. The act of the other two robbers, smashed the display counter and grabbed gold ornaments in broad daylight, would no doubt have alarmed not only those inside the jewellery shop but also passers-by who witnessed the robbery. Fortunately, nobody was physically injured in this case.

A second getaway car was pre-arranged to meet the first car at a relatively remote area, ie, Anderson Road. The first car was abandoned and all the robbers changed their outfits before departing. Two left on their own and the other two who had the loot with them were conveyed in the second car. They were driven to different spots to discard various items, no doubt with the intention of either destroying incriminating evidence or hindering any investigation by the police.

After considering all the circumstances of this conspiracy to rob, which involved at least six persons, and the fact that these defendants targeted jewellery shops, a business of the kind like banks offer great temptation to robbers, I am of the view that this illegal agreement to rob jewellery shop is more serious than just robbing a jewellery shop per se as there were a few attempts to rob before the successful one on 10 September.

In the circumstances, I am of the view that a starting point of 10 years is appropriate, having regarded to Yip Hoi Kei, CACC 311/2004, and Leung Pui and Others, CACC 349/2014.

The 1^st defendant was born in China, is now aged 35. He has a clear record and was educated up to Form 3. He worked as a transportation worker. He is married with one daughter, but he resides with his girlfriend and two other daughters.

Mr Wan, counsel for the 1^st defendant, urged the court to consider the 1^st defendant had no knowledge that a jewellery shop was being targeted and/or weapons would be used. He had not actually took part in the robbery. Mr Wan ventured to suggest that D1 should be sentenced on the basis that he is a party to just an unarmed robbery and invite me to adopt a starting point of 4 to 5 years.

I indicated to Mr Wan that I have difficulty in accepting merely from counsel that the 1^st defendant was not aware of the use of weapon by the actual robbers. But the opportunity of having a Newton hearing was declined. Although he was only responsible as the driver of the getaway car, he is equally responsible for the robbery that was committed. His role is an important part of the planned robbery. He must have known that Ah Kei had some targeted place or person as there are two earlier occasions that Ah Kei and others not turned up as arranged. However, he got paid on those two occasions.

I am afraid he has himself to blame by not asking if it turned out to be a jewellery shop that was being targeted. I have carefully considered what was said on his behalf, including the written submission from Mr Wan.

I found no mitigating factor except his timely plea. Therefore, for the starting point of 10 years, I give you one-third full discount for your timely plea and reduce it to 6 years and 8 months. In view of your frank admission and your full cooperation and assistance to police, I further give you a discount of 6 months.

So the sentence I pass on you is one of 6 years and 2 months.

2^nd defendant, born in China, now 22 years of age. He has a minor record for possession of dangerous drugs, but that was committed after the present offence but before he was arrested for the present offence. He was educated up to Form 6 and worked as a salesman.

It was advanced on his behalf that he committed the present offence because of debt owed and had concern what debt collectors might do to him and his family as he had received threatening calls. Madam Chan suggested that the 2^nd defendant was naïve and he was gullible. Furthermore, he was double-crossed.

I must say that the 2^nd defendant who had received education up to Secondary 6 and have worked in financial institutions should have appreciated what he had agreed to do with others is a very serious offence. There were three attempts before this one which is executed. Likewise, I found no mitigating factors except his timely plea. For your plea, I give you one-third discount and reduce the sentence to 6 years and 8 months.

Having regarded to your admission, I further reduce the sentence by 4 months, so you are sentenced to 6 years and 4 months.

3rd defendant, also born in China, aged 25.  He is of previous good character.  He also received education up to Form 6 and at the time of the offence, he was unemployed. 

Mr Ching, on your behalf, urged that you only acted as middleman and did not take part in the robbery. Moreover, he said although you were aware the target victim is jewellery shop, you were not aware weapon would be used. I indicated to Mr Ching I have difficulty in accepting that the 3^rd defendant was not aware of the use of weapon despite he was told the target victim is jewellery shop. Opportunity to conduct Newton hearing was likewise declined by the 3^rd defendant.

Although he only put robbers together without he himself being a robber, this, in my view, does not make him less culpable. He knew it is a jewellery-shop robbery and he would receive a reward for being a middleman. He also took an active part in acting as a middleman, both before and after the robbery.

In his letter to the court, he said, “It was only after the police arrested me and took me back to the police station for investigation that I realised that the act of referral was illegal.” This is utterly nonsense and I have no hesitation in rejecting that, bearing in mind he was educated up to Form 6. I therefore see no mitigating factor except your timely plea. I give you one-third discount. That brings the starting point of 10 years to 6 years and 8 months. I also give you 4 months’ discount for your admission to police.

Therefore, the sentence I pass on you is one of 6 years and 4 months.

The 4^th defendant, born in China, is now 31 years of age. He had previous convictions, including robbery when he was a juvenile and he was sent to a rehabilitation centre in 2007 for that. He did not learn any lesson and treasured opportunity given to him by the court. And two years later, in 2009, he committed or started abusing drugs. He was placed on probation order for 15 months. Again, he did not treasure this opportunity and since then had on two other occasions convicted of drug-related offences. The more serious one is in 2013 when he was convicted of trafficking of dangerous drugs and sent to 4 years and 2 months.

Mr Yip urged upon me that neither you nor other robbers had actually used violence or inflicted any injuries on any person during the robbery. It was also urged you are not the mastermind and you are not the one who carried the machete. Despite your record which deserve no mercy from this court, I would not enhance the starting point. Nothing said on your behalf or by yourself persuaded me that you deserve to be dealt with leniently. Except your timely plea, again, I find no mitigation.

Likewise, I give you one-third discount from the starting point. That brings it down to 6 years and 8 months. I also give you 4 months credit for your frank admission to police after your arrest.

Therefore, the sentence I pass on you is also one of 6 years and 4 months.