CRIMINAL CASE NO. 79 OF 2009
COURT: Pau Lai-sing, you have pleaded guilty to the armed robbery of a jeweller’s shop in 1997, an offence for which you were only apprehended in 2008. This was a large jeweller’s shop in Tsuen Wan with glass-topped counters and rows of stools for customers’ use.
On the afternoon of 26 July 1997, there were 10 or more customers and around 10 staff in the premises when you entered, masked with a balaclava, armed with a pistol or pistol-like object, and carrying an engineer’s hammer. You knew what you were going to do. You had undoubtedly planned this robbery in advance and must have reconnoitred at the shop. You were at all times acting alone.
Your entry in this manner and your actions thereafter caused terror to the occupants of that shop, sending them fleeing for safety and, as we can see in the stills taken from the CCTV, sending staff and customers alike to hide behind the counters for safety. You were brandishing the pistol-like object as is shown in the enlarged Photograph No. 51 in the bundle, that is, pointing it at those present in the shop in order to terrorise them into submission and to prevent any resistance.
You used the hammer to strike repeatedly on the reinforced glass counter containing valuable watches. One witness said you struck 20 or 30 blows; another said 10. Eventually, you smashed your way through the glass and reached in to grab over half a million dollars worth of watches, $600,000 worth of Rolexes, Longines and the like, and then you fled.
In the streets nearby was a police patrol which included Sergeant Man Fat-ming, then an auxiliary police officer, a veteran of over 32 years at the time, from whom we have heard evidence today in the course of this sentencing procedure. Sergeant Man was told about the robbery in progress by a person in the street, perhaps by one of the customers who fled the shop, and he went forward, looking for the robber, believing him to be armed.
What happened next has been the subject of dispute. The Summary of Facts as originally drafted and admitted by you stated merely, in paragraph 7, “A shot was fired by Sergeant Man who was in pursuit of the defendant. The defendant made good his escape”. I was aware that the statement of Sergeant Man gave a detailed account of why he said he had fired that shot which was, in essence, that you had twice pointed the pistol which you were carrying at him in the course of your escape and in order to escape.
That account was, I judged, relevant to the assessment of the gravity of this crime. The Summary of Facts had missed out a vital part of the events. I was informed that you disputed that account and maintained that you had not pointed the pistol at him.
Following an adjournment, I have today held a trial on that issue in accordance with the principles of The Queen v Newton. I heard evidence from the now retired Sergeant Man and from you. The result has been a finding by me which I have given in some detail earlier this afternoon.
Sergeant Man saw you and challenged you as you ran from the robbery. You turned and briefly pointed the pistol at him. Sergeant Man drew his revolver and shouted at you to stop. You ran and he chased. You turned and pointed the pistol again at Sergeant Man, this time in a more determined manner and so as to protect himself from the possibility of being shot, he fired once towards you. It is apparent that he missed with his shot and you ran. He chased you, revolver still drawn, but could not catch you.
So you escaped and were not arrested for this robbery for 11 years, until 12 September 2008. By then, you had been identified, having been arrested on subsequent occasions in respect of which DNA samples had been taken and which had, by then, been matched to the DNA left by you during the robbery on the balaclava and the blood when you cut yourself on the glass. Thus it is that justice has, in the end, caught up with you.
You have said in evidence this was a toy gun. Let me make it crystal clear that it makes no difference whatsoever whether this was a real firearm carried by you or an imitation, firstly, because it terrorised the multiple victims in the jeweller’s shop either way, and secondly, because, as was said by the Court of Appeal in a case called Yu Tai Wing [1995], the chances are that the police called to the scene of armed robberies might themselves be compelled to open fire and the risks of innocent bystanders being killed or injured are always present in circumstances where split-second decisions have to be made.
That is exactly what happened here. As I have described, Sergeant Man had to open fire in defence of himself. He has rightly described this as being a busy area. It was mid-afternoon. The fact that no one was injured either in the actual robbery or its immediate aftermath is no credit and no mitigation to you. The risks to innocent bystanders were acute.
The twin aggravation in this case is the presence of the pistol-like object giving rise to the risk of the police necessarily opening fire in public and the fact that you pointed it not just at the staff and customers in the robbery, but also at the police officer engaged, with considerable bravery, in trying to arrest you.
You were aiming on that day for very substantial rewards. That is why you masked yourself, why you carried a pistol-like object, genuine or imitation. You made off with a valuable haul which was not recovered save for one of the watches which turned up in a Rolex repair centre in 2006. You had no care for the trauma inflicted on those inside the shop.
It makes no difference that 11 years elapsed between the commission of the offence and your apprehension. It is correct that you were 19 years of age when you committed this robbery but, in the meantime, you have continued to offend, in 2002, in a serious manner involving another armed robbery where, in company with another man, you robbed a female staff at a beauty parlour at knifepoint. Staff were tied up during the attack and were forced to hand over PINs for ATM cards which you had stolen along with $10,000 worth of other property.
For this offence, you were sentenced, upon your plea of guilty, to 4 years and 3 months’ imprisonment which equates to a starting point of less than 6½ years, a relatively light sentence which would no doubt have been significantly increased had your record for robbery been known.
I do not treat that subsequent conviction as an aggravation of the present offence, but it shows your character, a man prepared to use significant violence to steal property. The fact that you were only 19 at the time of this present offence, and of clear record, is, in my judgment, irrelevant.
I now have to determine what should be the starting point for sentence for this armed robbery in which actual violence was used to smash your way into the counters, where staff and customers were terrorised by the brandishing of what they must have believed to be a firearm by a masked raider, where a police officer was threatened with the same object to a point where he felt it necessary to discharge his own gun in a public place where innocent bystanders were likely to be found and were thereby put at risk.
Of course, your plea of guilty leads to a discount in the sentence. Normally, such a discount would be one-third to reflect the plea of guilty and all the mitigation, but you have chosen to challenge the factual basis of your offence and you have lost that challenge. That challenge was in respect of a significant aspect of the facts relating to a serious aggravation of the offence. It is suggested that, having lost the trial of issue, you will inevitably receive a greater sentence and, therefore, should not lose any discount because that would amount to double-counting.
But I disagree. Your sentence is fixed according to the gravity of the offence. The discount is fixed mainly by reference to your plea and your admission of facts. As you did not admit all the relevant facts, you are not entitled to the discount which would otherwise have been available. I judge the proper discount in all the circumstances should be one-quarter of the starting point.
I have taken into account the cases referred to me by Mr Poon on your behalf, namely Man Yui To, CAAR6/1984 and Mang Wai CACC4/2007. These are examples of many other cases of armed robbery which have come before the Court of Appeal over the years. I note also Kwok Yun Hung [1995] 3 HKC 838 and Wong Hoi Chung, CACC168/2005, which have elements which may be regarded as more serious than this but which lack the aggravation of pointing a pistol at a police officer in a manner which caused the police officer to discharge his own gun in public. I do not regard simple comparisons of features to be useful.
I have to say that, without that aggravation about which the trial of issue has taken place, I would have regarded the proper starting point as being 16 years’ imprisonment. As it is, I judge that the starting point should be 18 years’ imprisonment. I reduce that by one-quarter to reflect the available mitigation.
The sentence imposed upon you is 13½ years’ imprisonment.
I wish to give this public commendation of Sergeant Man Fat-ming who, in my judgment, acted with conspicuous bravery in attempting to apprehend an armed raider, giving little thought to the personal risks which he faced. Although he has now retired from the Auxiliary Police Force and these events occurred 12 years ago, he is to be publicly commended for his bravery.