COURT: The defendant robbed two convenience stores on 24 September 2016 and attempted to rob another two convenience stores on 30 September 2016 and 1 October 2016. The defendant was charged with two counts of robbery, Charges 1 and 2, and 2 counts of attempted robbery, Charges 3 and 4. He pleaded guilty to all charges.
The defendant admitted the following facts pertaining to the four charges.
Charge 1, Robbery
At 0405 hours on 24 September 2016, the defendant, wearing a mask and a pair of sunglasses, went into a convenience store at Sun Tin Wai Estate, Sha Tin. He pointed a folding knife at PW1, Mr Yuen Ka-lim, the staff member of the store, who was standing behind the cashier counter. The defendant said to PW1: “Keep cool, I am only after the money. Open the drawer and give me all the $500 notes”. PW1 took banknotes in the total amount of $7,000 from the cashier and handed the same over to the defendant. The defendant then fled. The incident was captured by the CCTV of the store.
Charge 2, Robbery
At 0446 hours on the same day, the defendant, in the same outfit, went into another convenience store located in Mong Kok Road, Mong Kok. He pointed a folding knife at PW2, Mr Chan Wai-shing, the staff member of the store who was standing behind the cashier counter. The defendant said to PW2, “Won’t hurt you, just for money”. PW2 took banknotes in the total amount of $3,780 from the cashier and handed over the same to the defendant. The defendant then fled. The incident was captured by the CCTV of the store.
Charge 3, Attempted Robbery
At 0507 hours on 30 September 2016, the defendant, wearing a cap and a mask, went into a convenience store at Lek Yuen Estate, Sha Tin. He pointed a folding knife at PW3, Madam Fung Ho-yan, a staff member of the store, behind the cashier counter and he said “Robbery”. PW4, Madam Chung Ling-ling, another staff member of the store, standing next to the cashier counter, heard what the defendant had said and pressed the security alarm at once. After a while, on seeing PW3 gave no response to his request, the defendant fled emptyhanded. The incident was captured by the CCTV of the store.
Charge 4, Attempted Robbery
At 0343 hours on 1 October 2016, PW6, DPC13155, saw the defendant acting furtively while walking along Jat Min Chuen Street before turning into Ming Shun Lau, Sha Tin. PW6 then saw the defendant put on a mask and sunglasses before entering the convenience store at Ming Shun Lau, Jat Min Chuen. Meanwhile, PW5, Mr Yim Kwok-keung, a staff member of the store, saw the defendant going in and he went to the cashier counter, preparing to serve the defendant. At that time, the defendant took out a folding knife and pointed it at PW5 who was behind the cashier counter, as the defendant declared robbery. On seeing that, PW6 and other police officers nearby immediately rushed into the store and subdued the defendant. The incident was captured by the CCTV of the store.
At 0350 hours, PW6 arrested the defendant. The defendant said under caution: “Ah Sir, I got caught red-handed and now arrested by you. I did it because it was a state of emergency”. The police recovered the outfit the defendant wore in the first three offences and one pack of five masks as a result of a house search carried out at the defendant’s home.
On 1 October 2016, PW6 and PW7, DPC5745, took five video-recorded interviews with the defendant in which he made full admissions in relation to the four offences as follows.
(a) He committed all the four offences alone.
(b) He confirmed the clothing seized during the house search were worn by him in the first three offences.
(c) He used the same folding knife in all four offences.
(d) He had spent all the stolen money.
PW6 took the defendant to scene revisits. In a post-recorded video interview, the defendant confirmed the four locations he was taken to for scene revisits were the shops he committed the four offences.
The defendant is now 43 years old, locally born. He received education up to Form 4. He had worked in the transportation industry, earning a monthly income of $20,000. The defendant is a dangerous drug addict. He is single. He lived with his mother and elder sister before his remand.
The defendant has a total of 12 criminal convictions recorded against him arising out of nine matters. He was first convicted of attempted taking conveyance without authority and going equipped for stealing in 1991. Over the years, he had been convicted of dangerous drug-related offences and four dishonesty-related offences. On 2 January 2015, the defendant was sentenced to 2 months’ imprisonment for a charge of possession of dangerous drug. The term of imprisonment was suspended for 24 months. The defendant is in breach of the suspended sentence following his convictions in the present case.
I am grateful to Ms Chu for a detailed written mitigation. Ms Chu tells me in mitigation, the defendant was living with his 85-year-old mother and 58-year-old elder sister at a self-owned flat Home Ownership Scheme in Sha Tin prior to his arrest. The defendant was born to a working class family in Hong Kong. The defendant was ranked the youngest among his parent’s four children. The defendant’s father passed away in 2003. The defendant last worked as a coach driver before he was laid off in December 2015. He was unemployed before his arrest and his living was supported by his family.
The defendant was a drug addict at the time of the offences. He started his drug abuse in his early teenage years. He has a history of mental illness as a result of his drug abuse. According to the discharge summary of Tai Po Hospital dated 18 January 2016, the defendant was suffering from mental and behavioural disorders and was diagnosed as having a drug-induced psychosis. The defendant was heavily addicted to heroin. Since November 2015, the defendant had to use heroin a few times a week. Each use would cost $400 to $1,000. After the defendant was laid off from work in December 2015, the defendant started to seek money from his family to meet his financial need to buy drugs. The defendant finally committed the present offences out of desperation.
Ms Chu submitted that the commission of all offences were simple and straightforward although they involved the use of a knife and the defendant had displayed it to the victims. No physical violence was used and the defendant had told PW1 and PW2 that he would not cause harm to them and that he only wanted money. Ms Chu submits that the defendant admitted Charge 4 when he was arrested. He made full confessions in relation to all four offences in the subsequent video-recorded interviews. He also co-operated with the police in the house search and scene revisits.
Ms Chu draws my attention to the sentencing guidelines for armed robbery as set down by the Court of Appeal in Mo Kwong Sang v The Queen [1981] HKLR 610. The appropriate sentence in an ordinary case of armed robbery where the accused carried a knife which he displayed to his victim should be 5 years’ imprisonment. Besides, multiplicity of offences of a similar kind is considered as an aggravating factor that sentences should be increased from the sentencing guidelines. Ms Chu submits that though the Court of Appeal said in Mo Kwong Sang:
“If such a robbery also involves an invasion of private premises (which includes domestic and house and business premises and the common parts of premises such as lifts and staircases), we suggest that a sentence of 6 years would be appropriate.”
She submits that a convenience store is not a private premises. She draws my attention to HKSAR v Lam Hoi, CACC 105/2016. The Court of Appeal said at paragraph 50 to 53 of the judgment:
“50. The next issue is the judge’s starting point. In reaching a 6.5 years’ imprisonment starting point, the judge treated the shops as business premises and so took an initial starting point of 6 years and then enhanced it by 6 months to allow for the aggravating factor of the shops being of a particular type, namely convenience stores. We are satisfied that in adopting this approach, the judge erred.
51. The 6 years’ starting point laid down in Mo Kwong Sang was for robberies involving ‘an invasion of private premises’. The additional words which immediately follow in brackets, ‘which includes domestic and business premises and the common parts of premises such as lifts and staircases’ were intended to extend the description of private premises in two ways.
52. The first was to extend it to the public areas of such premises such as lifts and staircases. This is simple commonsense when the bulk of the Hong Kong population live in high-rise apartment buildings and when robberies in lifts have, at times, been quite common. The second way was to extend it to business premises and this raises the question of whether, in so doing, it was intended to include all business premises. That is not what we understand it to include. The word ‘premises’ was qualified by the word ‘private’ and we take this to have been deliberately done in order to narrow the type of premises to which the Court of Appeal was referring. Furthermore, requiring that the premises must be private in character is consistent with the conduct that is being made an aggravating factor, namely, the ‘invasion’ of these premises. To be capable of being invaded, the premises must be premises which the public do not have a general invitation to enter. Only those which are not open to the general public and which operate with a degree of privacy and security are capable of being invaded. Shops which are open to the general public are not capable of being invaded as the public enjoy a general invitation to enter them.
53. The judge should simply have enhanced the Mo Kwong Sang basic guideline of 5 years’ imprisonment to allow for the aggravating factor of the premises being convenience stores.”
The Court of Appeal in HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 699 held that places such as petrol stations and convenience stores that were open around the clock were susceptible to robbery and had to be protected. A deterrent sentence was warranted for those who rob these places. The Court of Appeal in HKSAR v Wong Cheung [2011] 5 HKLRD 171, reconfirmed the observation made in Kwok Cheuk Man in paragraph 16 of the judgment:
“The court has once emphasised in a case of similar nature that convenience stores are open 24 hours and in general, carry large amounts of cash, thus are very tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith shop or other shops which carry large amounts of cash. Heavy deterrent sentences are called for as to prevent these shops from falling prey to robbers easily.”
Ms Chu accepts the fact that the four charges concerned convenience stores is an aggravating factor in considering the sentence. Ms Chu submits that for the four offences in question, each offence represents an additional culpability of the defendant but the sentences should not run wholly consecutively, bearing in mind the application of the totality principle. Ms Chu cites the following cases as comparable: HKSAR v Chan Pak Hung, CACC 404/2006, HKSAR v Choi Ka Kin Seraphim, CACC 377/2012, HKSAR v Muhammad Waqas and Another, CACC 392/2012 and HKSAR v Lam Hoi, CACC 105/2016.
In Chan Pak Hung, the 18-year-old defendant pleaded guilty to two armed robberies of convenience stores. On each occasion, he acted in concert. For the 1st charge, he pointed a chopper at the victim’s waist and on the 2nd charge, he displayed a fruit knife. In view of the defendant’s clear record and young age, a global starting point of 8 years and 3 months was taken.
In Choi Ka Kin Seraphim, the 20-year-old defendant pleaded guilty to six armed robberies of convenience stores. He acted in concert on each occasion except for the first. All six robberies involved the use of and display of a knife. The defendant also voluntarily admitted to five other robberies when he was arrested for the last one and that was accepted as a significant mitigating factor other than his guilty plea. The Court of Appeal said that a global starting point of 9 years’ imprisonment was appropriate.
Ms Chu once attempted to submit that the defendant in the present case “voluntarily admitted to three other robberies when he was arrested for the last robbery in the indictment (4th count). He further made full confession in relation to all four offences in a video-record of interview dated 1 October 2016, immediately after the arrest” - paragraph 7 of the written mitigation.
I pointed out to Ms Chu that according to the Summary of Facts, the defendant only admitted his involvement in Charge 4 upon arrest. He did not, as the defendant in the case of Choi Ka Kin did, volunteer to confess his involvement in other robberies. The defendant only confessed his involvement in Charge 1 to 3 when he was interviewed by the police subsequent to his arrest. Ms Chu did not pursue the submission that it was the defendant who volunteered his involvement in Charge 1 to 3.
The case of Muhammad Waqas, the 18-year-old defendant pleaded guilty to two robberies of the same convenience store and the same victim. He acted in concert on each occasion and a knife was held against the victim’s throat in the first robbery. The defendant deliberately chose the same shop and victim to rob. The Court of Appeal held that a particular terror must have been caused to the lady victim when she saw the same two robbers return to rob her again, a few nights after the first robbery. The Court of Appeal refused to disturb the overall starting point of 9 years before plea.
In Lam Hoi, the 18-year-old defendant pleaded guilty to three robberies of convenience stores. He acted alone on each occasion and a knife had been pointed at the victim’s stomach in the first robbery and pointed at the victim’s head in the second. The Court of Appeal adopted an overall starting point of 8 years’ imprisonment.
It should be noted that the defendants in the comparables cited by Ms Chu were all young in age. Two of them were aged 18 and one aged 20. In Chan Pak Hung, the defendant had a clear record. As Ms Chu no longer pursues the submission that “the defendant voluntarily admitted to three other robberies. He showed general remorse in his willingness to admit his guilt when he was not charged with the other three robberies”, the only mitigating factor is the defendant’s plea of guilty. Paragraph 16 of the written mitigation.
In sentencing the defendant, I have borne in mind the facts of the case, the nature of the robberies and attempted robberies in question, the background of the defendant and the matters urged on the defendant’s behalf by Ms Chu. Each of the robberies and attempted robberies involved the use of and the display of a folding knife to the victim concerned. In fairness to the defendant, other than the display of the folding knife, no actual violence was used on the victim. The Court of Appeal in Mo Kwong Sang said that:
“We suggest that in future, the appropriate sentence in an ordinary case of armed robbery where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be 5 years.”
On Charges 1 and 2, following the guidelines as set down in Mo Kwong Sang, I adopt a starting point of 5 years’ imprisonment. The commission of Charges 1 and 2 was aggravated by the fact that they were robberies of convenience stores and for the reasons stated by the Court of Appeal in Lam Hoi, Kwok Cheuk Man and Wong Cheung, robberies committed against a convenience store is considered as an aggravating factor. In my judgment, the aggravating factor calls for an upward adjustment of 1 year and that brings the sentences for Charges 1 and 2 to 6 years’ imprisonment for each charge.
The same analysis applies to Charges 3 and 4, except that they are charges of attempt. In my judgment, a starting point of 4 years’ imprisonment is appropriate for each charge and an upward adjustment of 9 months is called for because of the fact that both offences concerned a convenience store. That would bring the starting point for Charges 3 and 4 to 4 years and 9 months’ imprisonment.
The defendant should be given one-third reduction in sentence because of his guilty pleas and co-operation with the police after his arrest. The defendant, through his sister, made full restitution to the victims in Charge 1 and 2. I would allow the defendant a further reduction of 2 months on Charges 1 and 2.
For the reasons given, I sentence the defendant as follows.
On Charge 1, I sentence the defendant to 3 years and 10 months’ imprisonment, ie, 46 months.
On Charge 2, I sentence the defendant to 3 years and 10 months’ imprisonment, ie, 46 months.
On Charge 3, I sentence the defendant to 3 years and 2 months’ imprisonment, ie, 38 months.
And on Charge 4, I sentence the defendant to 3 years and 2 months’ imprisonment, ie, 38 months.
I bear in mind the totality principle. The defendant committed Charges 1 and 2 on the same day within a short span of 45 minutes against two different convenience stores in two different districts. He then committed Charge 3 six days after Charges 1 and 2. On the following day, the defendant committed Charge 4. Charges 3 and 4 were attempted robberies. The Court of Appeal in the case of Lam Hoi said, at paragraph 60 of the judgment:
“As each offence represents additional culpability of the appellant, the sentences could in principle be made consecutive subject to the overriding application of the totality principle. Clearly, this principle would prevent orders being made for the sentences to run wholly consecutively.”
In my judgment, a notional starting point of 9 years’ imprisonment should adequately reflect the overall culpability of the four charges. A total sentence of 5 years and 10 months, ie, 70 months, is appropriate, taking into consideration the guilty pleas of the defendant and the restitution made.
I order 12 months of the sentence for Charge 2 shall run consecutively to the sentence for Charge 1, making a subtotal of 58 months. Six months of the sentence for Charge 3 shall run consecutively to the sentences for Charges 1 and 2, making a subtotal of 64 months. Six months of the sentence for Charge 4 shall run consecutively to the sentences for Charges 1, 2 and 3, making a subtotal of 5 years and 10 months, ie, 70 months.
The defendant has to serve a total term of 5 years and 10 months’ imprisonment.
The 2 months’ suspended sentence in KT 10/2015 is activated in full to run consecutively to the sentences in the present case.