CRIMINAL CASE NO. 182 and 209 OF 2010
COURT: I will refer to the defendants by their trial nominations of the 2nd defendant and 3rd defendant.
The defendants were charged with conspiring to rob Guardforce personnel whilst they were making a cash delivery to the Hong Kong Shanghai Banking Corporation automatic teller machines at the Sun Hung Kai Centre in the early hours of 6 June 2008.
The 3rd defendant pleaded guilty before trial and gave evidence for the prosecution.
The 2nd defendant was convicted after trial, and the 3rd defendant, who was the 1st defendant at trial, was acquitted by the jury.
The facts of the case were that commencing in early 2008, the present conspiracy came into being; the object of it was to intercept and rob Guardforce security guards as they delivered cash late at night for use in Hong Kong Shanghai Bank automatic teller machines in a mini bank on the 1st floor of the Sun Hung Kai Centre in Harbour Road.
On 6 June 2008, the robbery attempt was made, but its execution resulted in two male robbers being overpowered by the Guardforce security guards in the course of a failed attempt by those males to disable the Guardforce personnel with pepper spray as the guards exited a lift on the 1st floor of the centre with a cash box containing approximately $2.4 million.
Police, who apparently had information concerning the robbery attempt, were nearby, and arrested the two robbers as well as a third man waiting with a taxi downstairs.
The robbery had been planned by a group of co‑conspirators for several months. The 2nd defendant was one of those planning the robbery. He was an ex-Guardforce employee, and as such had information concerning procedures adopted by Guardforce in the making of cash deliveries to the Sun Hung Kai Centre. He was aware that such deliveries were particularly vulnerable to robbery as they were made in the very early hours of the morning in an isolated area of the centre and away from immediate support.
The jury must have accepted, in arriving at their verdict, the prosecution evidence concerning the 2nd defendant. Whether or not he had originated the idea of the robbery, he had been one of the central personalities in the conspiracy, and had been instrumental in recruiting at least some others, including the 3rd defendant, into the conspiracy, and in providing significant information and planning for the purposes of the robbery. He had been an active participant in conducting reconnaissance missions in Harbour Road, and had been instrumental in a failed attempt to obtain operational stun guns originally planned to be used against the Guardforce security guards.
He had absented himself in the mainland on the night of the robbery.
The 3rd defendant had been recruited into the conspiracy by the 2nd defendant. He had on one occasion accompanied the 2nd defendant when the 2nd defendant was delivering what he said was a stun gun to a location in Harbour Road, and on two other occasions had, on the 2nd defendant’s instructions, conducted surveillance of the area around the Sun Hung Kai Centre.
His role was obviously subordinate to that of the 2nd defendant and was that of an assistant or follower rather than of a planner.
So far as the 2nd defendant is concerned, I bear in mind that while no firearms were used, pepper spray was used though no serious or permanent injury was sustained by the Guardforce personnel, and that at one stage, to the 2nd defendant’s knowledge, the use of stun guns was contemplated.
The conspiracy was sophisticated and, at least superficially, well organised. Different roles were allocated to different people. A system of delivery of items presumably relevant to the planned robbery was instituted whereby the item was dropped off in a public area by one conspirator and later collected by another. The 2nd defendant was involved on at least two occasions in such deliveries.
A continuous and well-executed system of reconnaissance was used to alert the conspirators to any unusual police presence, and was effective in that on at least one occasion, the robbery attempt was postponed due to an observed police presence in the vicinity of the Sun Hung Kai Centre.
So far as the 2nd defendant is concerned, I take a starting point of sentence of 11 years’ imprisonment. There is no substantial mitigation able to be advanced on his behalf, but perhaps overly generously, I will allow him a small discount for what, by ignoring his previous fine for possession of dutiable goods, was a clear criminal record.
He is sentenced to 10 years 6 months’ imprisonment.
So far as the 3rd defendant is concerned, his role, as I have said, was as an assistant or follower to the 2nd defendant. He nevertheless was aware of the scope and object of the conspiracy and of the risk to the Guardforce personnel. He participated in the knowledge that it was proposed at one stage that stun guns were to be used in the course of the robbery. The activities in which he had participated were important to the planned success of the robbery, particularly that of the role of lookout he had performed on the night of the robbery attempt.
I take a starting point of sentence of 8 years’ imprisonment. The 3rd defendant, as I say, pleaded guilty to his role in this offence, and gave evidence in the prosecution case, which was, in my view, important to the conviction of the 2nd defendant. He is in that category stated in HKSAR v Lee Yat Fan CACC 414 of 1999 to warrant a reduction in sentence of 50 per cent. See also HKSAR v Z (2007) 10HKCFAR183 at paragraph 23.
There was no other mitigation, and accordingly, the 3rd defendant’s starting point of sentence is reduced to a sentence of 4 years’ imprisonment.