HKSAR v. FONG SIU YU AND ANOTHER

HCCC 266 & 354/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 266 & 354 OF 2014

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REASONS FOR SENTENCE

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1.  The two defendants were members or associates of a gang who were variously involved in a robbery and handling of electronic products, consisting of a large quantity of iPhone 5s and Intel computer processing units (CPUs).

2.  On the original indictment there were five defendants variously charged with robbery and handling of stolen goods.  Fong Siu‑yu was the 2^nd defendant (D2) and Chung Tsz-chun was the 4^th defendant (D4).  At the outset of the trial, D2 pleaded guilty to the robbery count and D4 pleaded guilty to the handling count.  The other three defendants proceeded to trial and were convicted of the counts they faced by the verdict of the jury.

3.  The two defendants agreed a summary of facts at the time of their pleas and it is upon those facts that I pass sentence on them. 

4.  In the evening of 4 November 2013, Yang Gengjie commissioned Lau Chong-kee who was the 5^th defendant (D5) on the indictment to provide transportation services to him for the collection of a quantity of electronic products from various locations.  Throughout the course of the evening, D5 had collected for Yang a large quantity of electronic products valued at about $4 million.  D5 was in telephonic communication with Wong Ka-fai the 1^st defendant (D1) on the indictment, during which arrangements were made to stage a robbery of the products collected by D5.  At the location of King Yip Street, Kwun Tong, the vehicle, in which D2 was an occupant with others, collided into the rear of D5’s vehicle.  D5 got out of the vehicle and pretended to remonstrate with the occupants.  D2 together with another male got on board of D5’s vehicle and declared robbery.  D2 was holding a knife at the time of about 30 cm long, which he then put to the back of the neck of Yang telling him not to move.  He then pinned Yang’s head down and told him not to look at him.  A cloth that he had used to cover his face was then used to cover Yang’s head as they drove off. It was pretended that D5 had been abducted by the robbers and then released. D5 then made a report to the police that he had been a victim of the robbery. Yang had been taken to a location in D5’s vehicle by D2 and another and was thereafter released.  Yang also made a report to the police.  D5’s vehicle was later found burnt out but with all the electronic products missing. 

5.  The police had some of the defendants, including D2, under surveillance.  On 8 November 2013, D2 together with D1 and Chen Long-yin, who was the 3^rd defendant (D3) on the indictment, were observed arriving at Sand Martin House and depositing two boxes and a nylon bag in a store room SR67 on the 11^th floor.  It was later uncovered that inside the store room were 72 iPhone 5s and 945 Intel CPUs which were part of the goods stolen in the robbery.  They were valued at about $1.15 million.  The store room was rented in the name of D2’s grandfather.

6.  On 8 November 2013, D2 was arrested by the police and after being cautioned, he stated that he had been in Mainland China with Ah Yiu and Ah Fai, who had asked him to seek a place to hide “the rat” stolen electronic parts and telephones and that they promised to pay him 10% as a reward.  In a later video recorded interview, he admitted that the store room belonged to his grandmother and that it was D1 and another person who asked him to hide the stolen property.  He also admitted that he knew the phones and computer components were obtained by illegal means and he helped transfer the goods.  He further admitted that he had given the keys to a white vehicle to D5 a few weeks before.  The two vehicles involved in the robbery were white vehicles.  In the admitted facts, he accepted that he had conspired with D1 and D5 to rob Yang on 4 November 2013.

7.  On 9 November 2013, D4 was arrested by the police.  He was searched and found on him was $9,031.50 and a set of 7 keys.  Two of the keys were found to be able to open the wooden door and the grille of the store room SR67.  After being cautioned, he stated that the matter had nothing to do with him and that both keys were given to him by Ah Fai who gave him $5,000.  In a later video recorded interview, he admitted that he was given $5,000 as a reward to watch over the goods.  He also stated that D1 had given him the keys to the store room and that he had been to the store room before but had not entered it.  In the admitted facts, he accepted that on 8 November 2013, he dishonestly undertook or assisted in the retention, removal, disposal or realisation of the items listed in count 2 on the indictment, knowing or believing them to be stolen goods.

8.  At the conclusion of the trial of the other three defendants, I sentenced D1 and D5 to 10 years’ imprisonment on the robbery count for which they were convicted and D3 to 3 years’ imprisonment on the handling count for which he was convicted.  I should point out that D3’s involvement in the handling count was limited to assisting in moving the two boxes and the nylon bag from a car to the store room SR67.  I consider the role and involvement of D4 to be far greater in relation to the handling count.

9.  When I sentenced the other defendants in relation to the robbery count I made these observations that are applicable to the sentence I should pass on D2.  I observed that there were a number of factors involved in this robbery that made it a serious case of robbery warranting a severe sentence.  The aggravating factors were that this was a premeditated and well planned robbery; that it was a gang robbery involving a number of people; that it was an inside job in that D5 was providing transportation services to the victim, while at the same time providing information and arranging the robbery with others; that there was a breach of trust in that D5 was entrusted to provide transportation services to the victim and not abuse or breach the trust that the victim placed in him in providing the transportation services for him; that physical violence and threats were made to the victim; that a knife was used on the victim; that the victim was abducted; that goods to the value of $4 million were stolen of which only $1.15 million was recovered; and that the road accident was staged and D5 pretended he was a victim as well which was done to deceive investigative officers and to conceal those behind the robbery. 

10.  I explained at the time I sentenced D1 and D5, as I do now, that D1, D5 and D2 played a major and important role in the planning and execution of this robbery.  The fact that the robbery was premeditated and well-planned is a serious aggravating factor.  It was a joint enterprise crime in which all played a major and important role in it.  Given this was a premeditated robbery that was elaborate in its planning and sophisticated in its execution a starting point of 10 years’ imprisonment should be adopted.  I see no reason to treat D2 any differently from D1 and D5. 

11.  Ms Catherine Wong for D2, has very ably submitted mitigation on behalf of her client.  She has asked me to take into account his family circumstances and his expressed regret for being involved in this matter.  She submitted that he was brought up by his grandparents with whom he has a close relationship and while in custody his grandfather had passed away.  She pointed out that he was asked to participate in the incident and was not the mastermind.  As I have stated, I consider that D2 played a major and important role in the robbery. As to his personal circumstances, they provide no meaningful mitigation given the seriousness of the offence.  The only mitigating factor in his favour is his plea of guilty for which he is entitled to a one-third discount. 

12.  D2 is 30 years of age and has a number of prior convictions mainly relating to crimes of violence which have occurred since the age of 14 years.  Like D1, he was convicted of wounding on 27 April 2015 and sentenced to 8 months’ imprisonment.  As he was under suspension for a sentence of 6 months’ imprisonment in relation to a prior conviction for criminal damage, this was activated with 4 months of that sentence made consecutive to the 8 months’ imprisonment for the wounding offence. The wounding offence occurred together with D1 and whilst both of them were in prison in relation to the robbery offence for which they are now both convicted.

13.  In the case of D1, I was asked to apply the totality principle by reducing the sentence imposed in relation to the robbery count.  In D1’s case, he had been sentenced to 8 months’ imprisonment in relation to the wounding offence.  As is apparent, this was a separate and distinct offence from the robbery offence and therefore should run consecutively to the sentence imposed in relation to the robbery offence.  I considered in D1’s case that as the prison sentence was of 8 months’ duration, it did not require any readjustment by way of an appropriate reduction on the basis of the totality principle. 

14.  The situation with D2 is slightly different in that he is presently serving a sentence of 12 months’ imprisonment in relation to the wounding conviction and the activated suspended sentence on his previous conviction for criminal damage.

15.  When a court sentences an offender for more than one offence, or sentences an offender serving an existing offence, the aggregate or overall sentence must be just and appropriate to the totality of the offending behaviour.  The issue that needs to be addressed is whether the combined sentence is unduly long or harsh for the offending behaviour.  This is determined by considering whether the cumulative effect of the sentences is out of proportion to the gravity of the offences. 

16.  In D2’s case I adopt a starting point of 10 years’ imprisonment for the robbery offence which I will reduce by one-third for his plea of guilty.  This results in a sentence of 6 years and 8 months’ imprisonment.  The combined sentence in the case of D2 is therefore 7 years and 8 months’ imprisonment taking into account the 12 months’ imprisonment he is currently serving.  I therefore consider that I should apply the totality principle by making an appropriate reduction to the combined sentence to the extent that the sentence of 6 years and 8 months’ imprisonment will be consecutive as to 6 years and 6 months’ imprisonment to the 12 months’ imprisonment that has been imposed on him in relation to the wounding offence and the activated suspended sentence in relation to the criminal damage offence.  D2 will accordingly serve a combined sentence of 7 years and 6 months’ imprisonment.

17.  As already indicated I consider the role of D4 to be more culpable than that of D3.  He had the keys to the store room and he admitted that he was rewarded by the payment of $5,000 to watch over the stolen goods. He is 19 years of age with a prior conviction for robbery when he was 15 years of age.  He was sentenced to detention centre and discharged from custody on 17 May 2011.  Mr Tse Hon Yuen has asked me to take into account his young age and personal circumstances.  He submitted that he has strong family support, especially from his mother, and deeply regrets his involvement in this matter.  He had previously worked as a cook but at the time of the offence he was unemployed.  In D4’s case, I adopt a starting point of 4 years’ imprisonment which I reduced by one-third for his plea of guilty.  He is accordingly sentenced to 2 years and 8 months’ imprisonment.