HKSAR v. CAI MAN-KOON

HCCC 339/2019

[2020] HKCFI 598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 339 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Cai Man-koon, pleaded guilty to the following charges before a magistrate and was committed for sentence in the Court of First Instance of the High Court.

The 1st charge is robbery, contrary to section 10 of the Theft Ordinance, Chapter 210. The 2nd and 3rd charge, they are theft, contrary to section 9 of the said Theft Ordinance.

Admitted Facts

The 1st charge. On 30 September 2018, the defendant posed as a customer and entered a watch shop called Omega in Nathan Road. He left after asking a member of staff to check the stock of a watch. He returned two minutes later and asked to be shown three Omega watches with a total value of around $600,000. When a staff member took out the three watches, the defendant suddenly took out a pistol‑like object and declared robbery. The defendant fled the shop with the three Omega watches. A report was made to the police.

Through CCTV images by cameras in the vicinity, a man believed to be the defendant was seen leaving by a taxi and went to the China Hong Kong City. That man changed his attire in a toilet and discarded a jacket and a shirt. The male then bought a ticket and departed from Hong Kong.

The police located the discarded jacket and shirt and found an air gun inside the clothing. The air gun was examined and confirmed to be an airgun capable of discharging 6mm calibre plastic pellets with muzzle exergy less than 2 joules.

Now, the 2nd charge in fact happened before the 1st charge. On 7 August 2018, the defendant went to the Tai Fok Jewellery and Watch Company in Yuen Long and asked to see a Rolex watch valued at $84,456. After he was shown the watch, he immediately put it on his wrist and fled with it.

The 3rd charge. It happened seven days later on 14 August and this time the defendant used the same trick. The shop was Shun King Jewellery & Watch Company in Sheung Shui. The defendant again asked to be shown a Rolex watch and this time the watch was valued at $65,000, and upon being shown the watch, the defendant immediately put it on and fled.

Arrest and Caution

The defendant was arrested on 19 December 2018 for the 1st charge. Under caution, he said he robbed the watch company because he was in debt, and during a video-recorded interview in relation to 1st charge, the defendant said he owed a large amount of debt due to failure of his business and he robbed the watch company of the three watches, having pointed a gun at a member of the staff. He confirmed he had changed his attire at China Hong Kong City and had discarded his clothing and the gun. He said he went to China and later pawned the three watches in the mainland for RMB116,000. The gun he used was bought from a toy shop, he said.

In subsequent video-recorded interviews in relation to the 2nd and 3rd charges, the defendant admitted he pawned the two watches in the Mainland for RMB60,000 and RMB43,000 respectively.

Background and Mitigation

According to the antecedent statement, the defendant was born in 1992 and is now 27 years of age. He had a previous conviction of causing wasteful employment of police in 2013 and was put on probation for 12 months. He studied up to Form 6 and claimed to be a purchasing agent at the time of the arrest. Defendant is single and has a girlfriend whom he resided with in the Mainland prior to his arrest.

Mr Mak, counsel for the defendant, gave me a little bit more information about the defendant’s background. The defendant’s parents were divorced when he was three and he seldom seen his father. His mother had to leave him with his aunt when she went to study in Japan. The defendant studied up to Form 6 and had worked as a purchasing agent and also as a trainee in a real estate company. He did quite well and had closed a deal for over $20 million while he was still a trainee. Unfortunately, the defendant lost about HK$1 million over investment and was pursued by creditors. Out of foolishness, he committed these offences due to the financial difficulties he faced.

Although the defendant admitted having pawned the three watches related to the 1st charge, Mr Mak informed me that the police had recovered them when the defendant was arrested. That was not disclosed in the Admitted Facts.

Miss Chan of the prosecution confirmed that the defendant was handed over to the Hong Kong police in connection with the robbery and the three watches were handed over at the same time. The watches have since been returned to the owner.

Mr Mak adduced three letters of mitigation: one by the defendant, one by the defendant’s mother and the last one by a Chaplain of the Christian Prison Pastoral Association Limited. I do not think there is any need to refer to these letters in detail. Suffice it to say that the defendant expressed his deep remorse for having committed these offences and he pledged he would not reoffend.

The defendant’s mother blamed herself for the defendant’s misdeed as she was a single parent and asked for leniency from this Court. The Chaplain also asked this Court to give the defendant a second chance by imposing a more lenient sentence.

Mr Mak stressed that the defendant was co-operative with the police and did not waste time. He also asked this Court to be as lenient as possible while acknowledging that this type of offences would call for a lengthy sentence.

Consideration for the sentence

From the facts admitted, the defendant’s modus operandi was to pose as a customer so that the staff of the various victim companies are not put on alert. In the first two instances, that is the 2nd and the 3rd charge, he posed as a customer and simply ran away with the Rolex watch after the shopkeeper had given him the watch. No force was used. On the last occasion, he armed himself with a toy gun and pointed it at a member of the staff after the latter took out the three Omega watches valued at around 600,000 at the defendant’s request. The defendant then took away the watches before fleeing.

In the case of HKSAR v Pau Lai Sing [2010] 3 HKLRD 233 which involved a defendant wearing a balaclava and gloves and holding a pistol-like object and hammer robbed a jewellery shop of 21 watches worth $594,600 by pointing the pistol‑like object at staff and customers and smashing the glass showcase. The Court of Appeal said at pages 18 and 19 of the judgment:

“Robberies of banks, jewellery shops and other establishments in possession of large amounts of cash or valuable items are very serious offences and must be deterred as such establishments offer a great temptation to potential robbers and will be otherwise often targeted.

Robberies involving the use of a firearm or an imitation firearm are particularly hideous. When law enforcement officers are alerted, they would not be able to tell if the firearm used by the robbers is real or just an imitation, and they might have to resort to their own, thus exposing the public to grave danger.”

In that case, the Court of Appeal was of the view that a starting point of 18 years adopted by the trial judge was manifestly excessive and that a starting point of 15 years was more suitable.

Having considered the level of force used by pointing a pistol-like object at a member of staff and taking away three watches worth around $600,000, I am of the view that a starting point of 12 years is appropriate for the 1st charge. As this is the third offence committed by the defendant within a short period of time, I will enhance this starting point by 6 months to reach a pre-deduction sentence of 12½ years. I will add here that even though the owner did not really suffer any loss as the three watches have been recovered and returned, I will not give the defendant any credit as he did pawn them, as admitted by himself. The recovery of these three watches was not due to anything the defendant had done.

For the 2nd charge of theft which was in fact the first in time, I am of the view that a starting point of 2 years is appropriate, having taken into account of the value of the watch.

As for the 3rd charge of theft that was committed a week after the previous theft using a similar method, I will again adopt a starting point of 2 years but enhance it by 3 months to 2 years and 3 months. Now I will add here that in fact I had not taken into account the defendant’s previous conviction of wasteful employment of police time in my consideration of the sentence.

The defendant pleaded guilty to all three charges which shows his remorse. While I am glad to hear that he had become a Christian and vouched not to reoffend after he is released from the prison, the only discount I can give him is his plea of guilty. I will also add here that the defendant’s mother should not blame herself for what the defendant had done. The defendant is an adult, not a child, and he has to take responsibility for his own act, not for his mother to take any responsibility.

As the defendant had pleaded guilty at the earliest available opportunity, he is entitled to the full one-third discount. So with the discount, the appropriate sentences are: the 1st charge, 8 years 4 months; 2nd charge, 16 months; 3rd charge, 18 months.

I will now have to consider totality. I am of the view that a global sentence of 10 years properly reflects the graveness of the defendant’s criminality. So to achieve this end, the actual sentence is as follows: 1st charge, 8 years and 4 months; 2nd charge, 16 months to run concurrently with the 1st charge; 3rd charge, 18 months to run consecutively to the 8 years and 4 months in the 1st count but concurrently with the 16 months imposed on the 2nd charge, so making a total of 10 years’ imprisonment.

(Discussion re calculation of sentence)

COURT: So long as that is made clear that altogether 10 years because of course 8 years and 4 months plus 16 months plus 18 months would be much more than 10 years. So the point is to make them up to 10 years only. So the way I am doing it now is for the 2nd charge, 2 months to run consecutively, and then for the last charge, all 18 months to run consecutively. So, in effect, it is 20 months consecutive.