CRIMINAL CASE NO. 273 OF 2011
The defendant pleaded guilty before me, and after he admitted to the facts, I found him guilty as charged.
The Admitted Facts disclosed that the defendant attempted to rob a female cashier, Miss Cheung, at the Liu Chong Hing Bank situated in the shopping centre in the Kwai Chung Estate on 7 February this year.
At around 3 pm that day, Miss Cheung was working as usual at her counter. The defendant, who was then wearing a black jacket, a black cap, and a surgical mask, approached Miss Cheung and produced a note with threatening words in Chinese characters: “Robbery 50,000 quick have gun”. Miss Cheung was frightened, and she did not touch the note. She notified her supervisor, Mr Wong, who was nearby.
Miss Cheung saw the defendant appeared to be saying something, but she could not hear what was said. She saw the defendant pointing his right hand to his jacket pocket, and she understood the defendant was indicating that he had a gun in his pocket as mentioned in the note the defendant had passed over to her. Miss Cheung did not actually see any gun produced.
After Miss Cheung notified him, Mr Wong also saw the note, and he heard the defendant say, “Robbery. I have gun,” when he looked through the counter at the defendant. Mr Wong saw the defendant move his right hand inside the jacket, and Mr Wong feared that the defendant was really carrying a gun, though Mr Wong did not see any gun produced either.
At that time an off-duty officer, Mr Leung, happened to be queuing up behind the defendant. When Mr Leung noticed the unusual facial expression of Miss Cheung, he moved forward to see what was going on. Mr Leung saw the threatening note. He also heard the defendant saying words to the effect that he - that is, the defendant - did not want to hurt anybody. Mr Leung then realised that a robbery was taking place, but before Mr Leung could do anything, the defendant fled from the bank.
Mr Leung gave chase, and he lost sight of the defendant. He found a cap, a black jacket and a surgical mask discarded in the staircase. These items were sent for analysis and later found to have the defendant’s DNA.
A fingerprint was found on the door by which the defendant made his escape from the bank. The print was found to match the left ring finger of the defendant.
The defendant was arrested one month later at his home, which was located in the same estate as the bank. Under caution, the defendant admitted he had committed the attempted robbery as he was in financial difficulties. In two subsequent video-recorded interviews, the defendant gave details of his commission of the offence.
Mr Chain, counsel for the defendant, confirmed that the information provided to me in the antecedents statement was basically correct. The defendant is 32 years of age, married, with an 8-year-old daughter. At the time of the offence, he was working as a casual glass installation worker at construction sites, earning around $12,000 a month. Mr Chain informed me the defendant’s work was not stable, and he was the sole breadwinner of the family. The defendant’s parents were divorced when he was very young, and he had a younger brother who suffered from some form of psychosis.
The defendant is not a first offender. He has three previous convictions, but none similar to the present offence. The last conviction was over 10 years ago in 1998.
Mr Chain told me the reason why the defendant committed this offence was because of the financial strain he was facing. The defendant had given some $10,000 to his wife for her to go back to the mainland for the Chinese New Year celebration. Just prior to her return, he played mahjong with others and lost all his money. He did not know how to face his wife and daughter, so he thought of such an amateurish plan to rob the bank.
During mitigation, Mr Chain asked me to view certain parts of the video-recorded interview. In the interview, the defendant frankly admitted what he had done and showed remorse. He also gave his reason for committing the present offence.
Mr Chain accepted that attempted robbery involved some sort of planning, but submitted that it was not a sophisticated plan. Mr Chain drew my attention to a number of authorities: the case of HKSAR v On Ling [2005] 1 HKC 227; HKSAR v Chu Kwok Yui (unrep. CACC389/2009), HKSAR v Obiagwu Oluchukwu Christain, [2011] 1 HKC 453 and also the reasons for sentence by Mr Justice Line in HKSAR v Yang Wan Hong, Dannis (unrep., HCCC298/2009). I will not give the citations now but I will add it back in my formal document, the reasons, later.
Mr Chain submitted that for a bank robbery involving the use of firearms, the starting point could be in the region of 12 to 15 years. He attempted to differentiate the present case from reported cases, putting emphasis on the following factors:
(1) while there was a threat of using a gun, no weapon was actually used;
(2) the planning was rather amateurish, not sophisticated;
(3) while the defendant attempted to rob a bank, unlike other cases, he was not aiming for a high stake, as he asked for $50,000 in his note.
Mr Chain asked me to scale down the starting point for bank robberies to reflect the true criminality of the defendant in this case.
I was also given letters in mitigation written by the defendant, his wife, his daughter, his brother, his former employers and co‑workers. I do not intend to reiterate what was said. Suffice it to say that according to his family, the defendant is a good husband, a good father and a good brother who takes care of his family. According to his former employers and co‑workers, the defendant is a diligent and responsible worker. They all plead for leniency on his behalf.
The defendant himself expressed to me his remorse and his concern regarding his wife and young daughter. He also begs for leniency.
I understand from Mr Chain that the defendant’s wife and daughter are now on CSSA.
Robbing a bank is a serious offence. For robbery of a bank in which firearms were involved but not used, a starting point of 15 years is considered appropriate. That is the case of R v Lo Kwok Hung (unrep., CACC472/1991) and also the case of R v Yu Wai Lam & Another (unrep., CACC56/1991). No distinction should be made between cases in which genuine firearms are used but not discharged and those in which imitation firearms are used. That is the case of R v Yu Tai Wing [1995] 1 HKC 837.
In the present case, the defendant did not display any gun, even though he threatened the bank staff by saying he had a gun and had gestured towards his jacket to make them think that he had a gun. I accept that the defendant did not actually have a gun with him.
In the case of On Ling, the defendant used a roll of newspapers as a prop to rob a man on the street. The trial judge adopted a starting point of 5 years, treating the roll of newspapers the same as a knife. The Court of Appeal overturned the sentence and substituted it with one of 32 months. Madam Justice Yuen, Justice of Appeal, giving judgment of the court, said in paragraph 9:
“It is of course true that the victim had been frightened by the prop, but the fact remains that the roll of newspapers was not a weapon and did not conceal one. The victim was never at risk of any physical harm from its use. In our view, if the same sentence is given whether a knife is displayed or where a roll of newspapers is displayed albeit as a dummy weapon, there would be little disincentive to the actual use of a knife.”
No doubt both Miss Cheung and Mr Wong had been frightened by the threat of a gun being mentioned. Like the victim in the case of On Ling, they were never at risk of any physical harm.
Interestingly, reference was made to an English case, R v Bentham [2004] 1 Cr App R 487, in the case of On Ling, and I quote what Madam Justice Yuen mentioned in paragraph 10 and 11:
“Counsel for the respondent referred us to R v Bentham [2004] 1 Cr App R 487 where during the course of a robbery, the defendant had his hand in his pocket and pointed and pointed his fingers so as to create the impression that he had a gun. The English Court of Appeal held that the fingers were capable of being an ‘imitation firearm’ within the meaning of the Firearms Act. The court adopted a purposive approach to the interpretation of the Act which sought to afford protection to the public who were put in fear by what they reasonably believed to be a firearm or imitation firearm.”
“However that case was concerned with what was capable in law of being an ‘imitation firearm’ for the purposes of the Firearms Act. That is different from the present case which was concerned with whether the appellant should have been sentenced on the basis that he had displayed a weapon.”
Although the facts disclosed that the defendant pointed at his pocket and put his hand inside his pocket, there was no evidence that the defendant pointed his fingers inside his pocket so as to create the impression that he had a gun. I will not take the decision of Bentham into my consideration in this case.
There is indeed another feature in the defendant’s case which differs from the usual bank robberies. The defendant did not go for a high stake. His demand for $50,000 could not be described as a large sum in all the circumstances.
I accept Mr Chain’s submission that this is not a sophisticatedly planned robbery, and the way it was executed does show that it was rather amateurish, particularly the defendant tried to rob a bank in his own estate. I accept the defendant committed this offence out of stupidity when he found himself faced with a financial problem. I also accept that he is truly remorseful.
Although the defendant is not a first offender, his previous convictions were such that he was never sentenced to a gaol term, and the last offence was over 10 years ago. I will not take into account his previous convictions when I consider the correct starting point.
This is a rather sad case. The defendant managed to be out of trouble for a long time, and he was happily married, with a young daughter. Having stupidly committed the present offence, he now faces a long term of imprisonment, and his family suffers as a result. His original idea of sparing his family the financial hardship when he embarked on the robbery resulted in his family suffering from more hardship.
Having considered all the circumstances of this case and tempering justice with mercy, I am of the view that a starting point of 6 years is appropriate. The defendant offers a timely plea before me, and I will give him the full one-third discount.
So for this offence, the defendant is sentenced to 4 years’ imprisonment.