The papers do not reveal the course and circumstances of the arrest of the 1st and 2nd accused. In any event, they came before Mr Daniel Tang, sitting as a permanent magistrate in the Eastern Magistracy on 19 April 2021. On that date, both accused pleaded guilty before the learned magistrate and admitted the set of facts which appears on the file. They were committed to this court for sentencing.
Counsel representing each accused has confirmed their plea and their admission of the statement of facts, antecedents and criminal records. Accordingly, they are convicted as charged.
Facts Admitted
At about 8.05 am on 9 February 2020 at the QQ Convenience Store in Tuen Mun in the New Territories, three males (including the 1st accused and the 2nd accused and one unknown person) wearing masks came into the store. The 2nd accused took a cutter from the store and grabbed a female staff member from the store. She was grabbed by the neck, pushed to the corner near the cashier area. The 2nd accused pointed the cutter at the staff member and told her not to make any noise.
While one of the robbers whose identity is presently unknown was searching around the cashier area, the 1st accused guarded the door at the entrance. A little bit later, the 1st accused took a roll of adhesive tape from a bag brought to the scene by the robbers and passed it to the 2nd accused to tape over the mouth of the staff member. In the result, the staff member told the robbers that she would not make any noise and her mouth was not sealed. While this was going on, another of the robbers whose identity is presently unknown took banknotes to the value of about $25,000 and coins in the store and put them into a bag which had been brought to the store by the robbers. While one of the unknown robbers continued searching around the cashier area, the 2nd accused said, “Tie her up.” Adhesive tape was looped around the upper body of the staff member. One of the unknown robbers then instructed the 2nd accused to tie the hands and feet of the staff member so as to prevent her from running away. The staff member then told the robbers she promised not to run after them. As a result, the robbers did not tie up the staff member.
Shortly after the robbers including the 1st and 2nd accused fled the scene, the case was reported. A taxi driver noted three males wearing masks rushed onto a 7-seater vehicle parked nearby. That was driven away. The overwhelming inference from the taxi driver’s observation is these were the robbers and they had brought a van to facilitate their getaway.
The 2nd accused was identified by the staff members who had been assaulted and threatened. CCTV revealed the course of the robbery and the vicinity of the site of the robbery.
Following his arrest, under caution, the 1st accused claimed that he did not know that they would commit robbery at the time he went into the store with the 2nd accused. He was told to act as a lookout and he complied. The black bag from which the adhesive tape was taken out by the 1st accused was given to him by the 2nd accused. The 1st accused admitted that he assisted in taking the stolen items away. He also identified himself in the CCTV together with the 2nd accused and another person named as Ah Bin.
The 2nd accused admitted under caution that he and the 1st accused were instructed by one man called Ah Bin to rob the store together. He claimed that he followed Ah Bin’s instructions to take a cutter from the store and point it at PW4, the woman who was the employee of the store. He admitted he instructed the 1st accused to take out the adhesive tape. 2nd accused admitted that the tape was used by him by wrap around the storekeeper’s hands. The 2nd accused identified himself and the 1st accused and Ah Bin on the CCTV.
Both accused admitted that they received around $3,000 and some cigarettes from the robbery.
Mitigation
Lo Chi-wai was 43 years of age at the time of the robbery. He worked as a part-time construction worker before his arrest. He is single and lives in premises in Yuen Long. He has a criminal record which goes back to 1993. He has been to prison for theft, robbery and burglary. He has been in prison for handling stolen goods. He also has a record in relation to the trafficking in dangerous drugs. He has written a mitigation letter which demonstrates remorse. He has offered to the police that he is prepared to be a witness. He has provided an NPS. That offer has not been accepted.
Lam Wan-lung was 46 at the date of the offence. He is now 47, educated to Primary 6 and has worked on and off since he was a teenager. He has previous convictions. He worked as a part-time decoration worker before his arrest. In that job, he earned about $20,000 per month. He was formerly married and has a child of that marriage. Previous convictions of this accused commenced in 1989 and involved in offences such as trafficking in dangerous drugs and theft. He too provided an NPS.
I take the provision by both of the accused of an NPS as an indication of remorse. That the prosecution has declined to accept the offer of assistance is, in my opinion, given the content of the NPS and for other reasons, perfectly understandable.
Sentencing Principles
Sentencing for Robbery
Robbery does not only cause the deprivation of property from the victim, but also has the potential to cause a serious impact on the victims themselves. There was no victim impact statement which I would have thought was an elementary necessity, but it takes little imagination to see that a mature woman threatened with a cutter and violence would have suffered substantially. The community may also be affected in the sense the general public may not feel safe, knowing that these types of crimes still happen in Hong Kong. People may worry about their safety. The sentence must reflect strong disapproval of such behaviour.
This was a robbery which revealed elements of planning. The fact that the getaway van was in the near vicinity, there was a bag containing the tape which was originally there to use against those in the store. Further, the 1st accused was assigned, amongst other roles, the responsibility of keeping a lookout. They wore masks - albeit not very effectively.
The second element of this robbery is that it was a robbery in company. Although the robbers appear not to have entered the store armed, the 2nd accused grabbed a cutter inside the store, brandished it, threatened a staff member inside the store. I am sure he was not off on a frolic of his own because this was done in plain sight of the 1st accused and there is no suggestion that the 1st accused suddenly disavowed himself of this conduct. The robbery went on.
A staff member was assaulted in the sense that she was threatened by a cutter and threatened with being tied up with tape. Her hands were, in any event, bound with the tape.
The convenience store, which was the site of the robbery, is a vulnerable place.
The courts of Hong Kong have set down guidelines for the offence of robbery in Mo Kwong Sang v The Queen [1981] HKLR 610. The Court of Appeal, Roberts CJ and Leonard and Li JJA considered a robbery in domestic premises. In that case, Roberts CJ enunciated the following guidelines to follow when considering sentence for an accused charged with robbery:
(1) Little account should be given to the previously clear record of anyone who takes part in the armed robbery.
(2) The appropriate sentence in an ordinary case of armed robbery, where the accused carried a knife or other dangerous weapon (excluding firearms) which was displayed to a victim should be 5 years’ imprisonment.
(3) If such a robbery involves an invasion of private premises, a sentence of 6 years would be appropriate.
(4) If physical violence (including typing-up of victims) is used, a sentence of 7 years’ imprisonment should be considered.
Other aggravating factors identified by Roberts CJ are:
(1) invasion of domestic premises during the night;
(2) threats made to victims;
(3) ill-treatment of victims;
(4) multiplicity of offences of a similar kind;
(5) more than one person taking part in the robbery.
Although the foregoing factors, if present, would be taken into account, I do not take this list to be exhaustive. Other circumstances would also be taken into consideration if they are relevant to the sentencing exercise.
These guidelines have been used and applied for many, many years. In Secretary of Justice v Ma Ping Wah [2000] 2 HKLRD 312, the Court of Appeal comprising Stuart-Moore VP and Mayo VP and Wong JA held:
“The time is not yet ripe for any general upward revision of the tariffs for armed robberies of this kind contemplated in that case.”
In their judgment, the Court of Appeal were referring to Mo Kwong Sang.
In HKSAR v Ng Ping Tak CACC 52/2019, [2019] HKCA 965, McWalters JA identified targeting of staff of convenience stores as an aggravating factor. He observed:
“The judge rightly regarded the fact that the victims were the staff of convenient stores as an aggravating factor. This was in accordance with binding judgments of the Court of Appeal in HKSAR v Lam Hoi, HKSAR v Kwok Cheuk Man and HKSAR v Wong Cheung. I note that in Lam Hoi the Court of Appeal held that an enhancement of 1 year imprisonment was appropriate for that defendant, but emphasised that it should not be taken as a norm for this particular aggravating factor.
In the present case the judge adopted the same level of enhancement. The decision of what quantum of enhancement is appropriate for this particular aggravating factor is an exercise of sentencing discretion by the trial judge. I cannot see any reasonably arguable basis for saying that this exercise of discretion by the judge miscarried.”
The parties here chose the early hours of the morning to commit the offence. They have chosen the time when people are less alert and there will be some cash with a lone employee on duty, and I cannot imagine the shock and terror to the fourth prosecution witness, that is the storekeeper, must have experienced, and I have no doubt that experience lingers on whilst the property and the terror caused to the victim made this offence a serious one. Convenience stores, whether they are the 24-hour type or simply open earlier or later or both, are especially susceptible to robbery, and this is an aspect that both accused have taken advantage of. This was reiterated in the Court of Appeal in HKSAR v Wong Cheung [2011] 5 HKLRD 171 to which reference was made by McWalters J. In Wong Cheung, Yeung JA, as he then was, held:
“Apart from robbing private domestic premises, the applicants also armed themselves with knives and acted in concert with other people to rob a convenience store. This court has once emphasised in a case of similar nature, that convenience stores are opened 24 hours and in general, carry large amount of cash, thus are very tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith shop or other shops which may carry large amount of cash, and heavy deterrent sentences are called for so as to prevent these shops from falling prey to robbers easily.”
The observation of Yeung JA in relation to 24-hour stores is applicable to convenience stores more generally.
Plea of Guilty
It is well-settled that a plea of guilty is likely to attract a discount from the starting point which would otherwise be applicable to the extent of 33 per cent.
Application of Sentencing Principles
The Involvement in the Robbery
It is necessary to identify the seriousness of the offence and the role of the accused in the robbery. The present offence is a serious one. There was a cutter used to threaten staff on duty. Before getting to the evaluation of starting point, the role of each accused must be identified.
Both accused belonged to a group of four in this plan to rob. The 1st accused acted as a lookout. He admitted that he was told to “keep an eye on the surrounding” and so that is what he did. He stood aside in the store and watched the robbery unfold. The 1st accused told out the adhesive tape from a black bag to assist the 2nd accused in typing up the fourth prosecution witness. The 1st accused assisted in taking away the stolen property. To him, the robbery was not premeditated and he only knew of the plan when entering the store. That is to be contrasted with his NPS which he now accepts there was a degree of preplanning.
2nd accused contends he was not a leading light in the planning of the robbery but was simply one who followed instructions.
There was an element of planning in this robbery. I am prepared to accept that neither of the accused before the court was necessarily the prime movers in that regard. I am also prepared to accept that there was an element of competence lacking in the planning. Nevertheless, they chose to join in this violent robbery. I do not think it is appropriate in the circumstances to make fine distinctions as between the roles of the accused who are presently before the court. In my opinion, what has to be done is to regard each of the accused as involved in a joint enterprise to rob a vulnerable convenience store in company, armed (albeit by taking advantage of a cutter left in the premises) and the infliction of violence and terror on the sole female employee of the store. Counsel on behalf of the 2nd accused makes the point that the violence inflicted was limited in the sense that it was no more than necessary and no actual injury was sustained. The employee of the convenience store was not injured in the physical sense, but I find she must have been utterly terrified. I do not accept the suggestion in mitigation that the violence was limited in the sense of being no more than necessary. It is simply not mitigation to say that this robbery could have been worse. The best that can be said for that submission is it avoids aggravating the starting point any further.
Mo Kwong Sang(above) made it clear that for robberies where the accused carried a knife and displayed it to the victim, the appropriate sentence is 5 years. Although neither accused in this case did carry the cutter used in preparation of the offence, but a cutter was indeed used and displayed to the victim in a bid to threaten her. In my view, where the cutter was obtained is immaterial. The only consideration I take from this is that the original plan may or may not have involved the use of a weapon but, nonetheless, one was used. The plan changed. No one backed out when the cutter was brandished.
Physical violence was used when the 2nd accused grabbed the victim by the neck and subsequently tied the upper body and hands of the victim with adhesive tape. The victim must have been threatened and was probably not in a position to make fine distinctions about the nature of the weapon involved. According to Mo Kwong Sang(above), circumstances point to a starting point of 7 years.
The courts have consistently regarded robbery of a convenience store to be a more serious matter. It seems to me that this particular store was selected as an easy target, and that renders the conduct of the accused more serious. Applying Ng Ping Tak and Wong Cheung(above), I believe an enhancement of 1 year would be appropriate. However, that gets to a starting point of 8 years. In my judgment, that is probably taking a starting point to a place where totality calls for a scaling-back of the sentence.
Both the accused have offered assistance to the authorities in the event that either confederates for this robbery are caught. The assistance has been regarded by the authorities as of no value. It is contended, citing HKSAR v Stephanie Lo Sze Tung CACC 190/2017, [2018] HKCA 421, §64, that some discount should nevertheless be given. The point about that discussion was that if there was a supervening event which prevented the assistance actually being rendered, the assistance offered should be recognised. In the present case, no supervening event has rendered the assistance of no actual value. It is not the kind of supervening event that McWalters J had in mind. Nevertheless, more as a recognition of remorse and that assistance to the authorities may have a deterrent effect on other criminals seems to me to be the policy which underlies Lo Sze Tung. I am prepared to allow a further reduction of 5 per cent to the discount of 33 per cent which is applicable.
Disposition
Would the accused please stand up? Both accused have pleaded guilty at the first available opportunity. They are both entitled to a one-third discount of the starting point for their sentence.
For the 1st accused, I impose a starting point of 7 years and discount that by 38 per cent, considering his plea of guilty and mitigating circumstances. That is a total of 4 years and 4 months.
For the 2nd accused, I also impose a starting point of 7 years and discount that by 38 per cent, considering his plea of guilty and mitigating circumstances. The overall sentence is 4 years and 4 months. The accused may sit down.
I cannot leave this case without thanking all counsel involved for their frankness and clarity in which they have made their submissions. They can truly walk out of this court knowing they have made a difference, and I am grateful.