HKSAR v. LAM MAN CHUNG AND ANOTHER

CACC 195/2023, [2024] HKCA 493

On Appeal From [2023] HKCFI 2744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 195 OF 2023

(ON APPEAL FROM HCCC NO 65 OF 2023)

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J U D G M E N T

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1.  There were originally four defendants who jointly faced, and pleaded guilty before a magistrate to, a sole charge of conspiracy to rob, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210, and sections 159A and 159C of the Crimes Ordinance, Cap 200. They were all duly committed to the Court of First Instance for sentence before Deputy Judge Eric Kwok, SC (“the judge”). The 1^st applicant (D1 at trial) was sentenced to 6 years and 2 months’ imprisonment, while the 2^nd applicant (D3 at trial) was sentenced to 6 years and 4 months’ imprisonment. The two applicants, who are unrepresented, have both applied for leave to appeal against their sentences, on the basis that they are manifestly excessive.

2.  On 21 May 2024, I reserved my decision in this matter, principally because one of the applicants had produced the references to two sentencing cases at first instance, which neither the respondent nor the Court had seen. I have since obtained and read the sentencing remarks in those two cases. This is my judgment.

The summary of facts

3.  At about 10:36 am on 10 September 2020, a private car stopped outside a jewellery shop in San Po Kong, Kowloon, whereupon three males alighted, wearing surgical masks, caps and gloves, and stormed into the shop. The same car had earlier been recorded by local CCTV cameras circling the area four times over the course of 20 minutes. One of the males (“M1”), holding a machete and a nylon bag, declared upon entry that it was a robbery. Having ordered the staff not to press any alarm, he then instructed the other two men (who were D2 and D4 at trial), to smash the glass display counters in the shop. D2 and D4 did so, using sledgehammers, which they had brought with them.

4.  The robbers stole gold ornaments to a total value of HK$572,974, and stuffed them into the nylon bag. Further, 30 gold rings were damaged in the course of the robbery requiring repair. The total loss suffered by the shop was HK$622,594. The owner of the shop, who happened to be in the back office at the time, called the police. After just over one minute, the three men boarded the waiting car, driven by a fourth man (“M4”), and fled in the direction of Sau Mau Ping.

5.  According to various CCTV cameras at the scene, the car driven by M4 went to Anderson Road in Sau Mau Ping, where it arrived at about 10:56 am. A minute later, a white box truck (“the truck”), driven by the 1^st applicant and followed by a 7-seater vehicle were seen leaving Anderson Road in the direction of On Sau Road. Meanwhile, two of the culprits in different clothing left on foot in Anderson Road.

The 1^st applicant’s admissions

6.  The truck was subsequently found to be have been used solely by the 1^st applicant for transportation work. On 18 September 2020, police officers located the truck in Sheung Wan, and mounted an ambush operation, during which the 1^st applicant was arrested as he approached the vehicle. Under caution, the 1^st applicant said, “I knew Ah Kei and his people went to rob a goldsmith shop, I only wanted to earn some transportation money so [I] drove them away”. On the next day, he led the police back to the route he had driven on 10 September 2020 and pointed out the various relevant locations, including the places where (i) Ah Kei and the other man had been picked up; (ii) they had thrown away the machete; (iii) they alighted from the truck to burn various items; (iv) they had thrown away some white gasoline; and (v) they were eventually dropped off.

7.  The 1^st applicant admitted in subsequent cautioned interviews that:

(i)  In late August 2020, Ah Kei asked him to be the driver in a robbery, for a reward of $1,000. The 1^st applicant said he had received the rewards after two earlier failed attempts.

(ii)  Arrangements were made to meet up with Ah Kei, who drove to the meeting place at Anderson Road with three others. He and another man boarded the truck with a red, white and blue bag, two backpacks, and spare clothes for three persons.

(iii)  He knew, whilst driving the truck, that Ah Kei had just committed a robbery at a goldsmith shop: the two men took out, from the red, white and blue bag, three to four trays of gold ornaments and a machete and put them into their backpacks.

(iv)  He described how he drove the two men to dispose of certain items including the machete and the red, white and blue bag, before dropping them off at a bus stop.

(v)  That night, he received HK$2,000 into his bank account, which he suspected was money from Ah Kei. Ah Kei then called him and told him not to contact him and to delete all WhatsApp records.

(vi)  The truck was registered in his mother’s name but was for his sole use.

The 2^nd applicant’s admissions

8.  On 6 October 2020, D2 was arrested, whereupon he claimed that the 2^nd applicant had recruited him for the robbery. Accordingly, on the following day, the 2^nd applicant was arrested and, under caution, responded, “I only introduced D2 to others to rob a goldsmith shop. I did not take part.” The 2^nd applicant subsequently admitted during cautioned interview:

(i)  On 1^st or 2^nd September 2020, he declined to participate in the robbery of a goldsmith shop, but agreed to introduce another person who would join in. His telephone number was therefore passed on to others, who contacted him to discuss the matter in detail, as well as his reward as a “middleman”.

(ii)  He knew D2 was in need of money and accordingly introduced him to the group. When D2 asked what he had to do, the 2^nd applicant explained that he would need to take a hammer and smash the display counters of the goldsmith shop. D2 was offered HK$60,000 to HK$70,000 for his role.

(iii)  On or about 4 September 2020, the 2^nd applicant met two unknown men outside Tai Po Market station, they discussed the robbery plan: the 2^nd applicant asked for $10,000 as his fee and it was agreed that D2 would get 15% of the total proceeds.

(iv)  On 10 September 2020, D2 told him that the robbery had been successfully completed, and asked for his reward. He therefore called his contact but was told it would take a few more days. The 2^nd applicant provided his bank account number to one of the persons he had earlier met at Tai Po Market station for the reward to be paid into.

(v)  On 11 September 2020, D2 asked him for help to sell three gold bracelets taken from the jewellery shop. The 2^nd applicant sold the bracelets for HK$9,000 at another goldsmith shop, and transferred HK$2,000 to D2 on the same night.

(vi)  He did not receive the promised fee as “middleman” nor did D2 receive his promised reward.

Mitigation

9.  The 1^st applicant was 35 years of age and a transportation worker with clear record. He had a 7-year-old daughter with his wife, with whom he was currently undergoing divorce proceedings, two retired parents and a girlfriend with two daughters, all of whom needed his financial support. The 1^st applicant contended that his role was merely a driver, with no involvement in the planning or execution of the robbery, nor was he informed of the details of the robbery in advance. He only learnt that the target was a goldsmith shop and that weapons were to be used when the two men boarded his car. He urged the court to sentence him on the basis that he was a party to an unarmed robbery, for which he had pleaded guilty at the first available opportunity.

10.  The 2^nd applicant was 22 years of age at the time of sentence, unemployed and also of clear record. He did not personally participate in the robbery, he merely introduced D2 to the others for a reward. He knew the gang planned to rob a jewellery shop, but he did not know the details, or that weapons would be used. He was not paid the promised “middleman” fee, but instead received three bracelets from D2, which he had sold for HK$3,000.

The reasons for sentence

11.  Referring to HKSAR v Limbu Binod[1], the judge identified the following aggravating factors in the case:

(i)  This was a conspiracy involving a gang of robbers (at least six persons were involved);

(ii)  The robbery was well-planned: a rented car was used to convey the robbers, with a false registration plate; the robbers wore surgical masks, caps and gloves to avoid being identified; the truck was arranged to meet the car before the car was abandoned; having changed their clothes, two of the robbers left on their own, while the other two were conveyed in the truck to different locations to dispose of various items;

(iii)  The offence took place in a very busy district of Kowloon in broad daylight;

(iv)  All of the robbers carried weapons, including a machete to threaten the staff and sledgehammers to smash the display counters; although nobody was injured, people at the scene were put in fear;

(v)  The total loss to the jewellery shop was some HK$622,000.

12.  Considering all the circumstances, the judge was of the view that a conspiracy to rob a jewellery shop was more serious than the substantive robbery itself; he noted there had been other earlier abortive attempts to rob[2]. He adopted a starting point of 10 years’ imprisonment.

13.  When sentencing the 1^st applicant, the judge rejected the assertions that he was not aware of the use of weapons or the actual target; he pointed out that the 1^st applicant had declined the opportunity to have a Newton hearing. The 1^st applicant, as driver of the getaway car, was equally responsible for the robbery, since he had played an important part in its commission. The judge found no mitigating factors except the timely plea, for which he gave a full one-third discount, and a further discount of 6 months for the applicant’s frank admissions and full cooperation with the police. The 1^st applicant was sentenced to 6 years and 2 months’ imprisonment.

14.  As for the 2^nd applicant, the judge found him equally culpable as the “middleman” who had recruited D2 to commit the robbery. The judge refused to accept the contention that the applicant was not aware that weapons would be used, since he knew the target was a jewellery shop; the 2^nd applicant also declined the opportunity to have a Newton hearing. Other than the one-third discount for his timely plea, the judge gave a further 4 months’ discount for the 2^nd applicant’s admissions to the police. The resulting sentence was 6 years and 4 months’ imprisonment.

Respondent’s submissions

15.  Mr Jones Tsui, on behalf of the respondent, submitted that the 10 year starting point was not manifestly excessive, given: (i) the target premises could be expected to have large amounts of cash, jewellery and gold ornaments; (ii) the robbery was premeditated, planned and well-organised, involving at least six persons playing different roles, two getaway vehicles and the concealment of identities; (iii) the robbery was committed in public and in broad daylight[3]; (iv) lethal weapons had been used, which inevitably put people at the scene in fear; (v) the stolen property was not recovered, resulting in a loss to the shop of some HK$622,000.

16.  Despite seeing Ah Kei and another man handling three to four trays of gold ornaments and a machete, the 1^st applicant continued to drive the men to various places to dispose of the items. Clearly, the 1^st applicant had agreed to be part of the conspiracy, however it was to be executed. The sentence of 6 years and 2 months’ imprisonment could not be said to be manifestly excessive.

17.  In respect of the 2^nd applicant, Mr Tsui submitted it was right for the judge not to accept a lower starting point on the basis of his claim that he did not know weapons would be used. Common sense dictated that weapons would be used to rob a jewellery shop; moreover, the 2^nd applicant had instructed D2 to carry a hammer to smash the display counters of the shop. Since the 2^nd applicant had recruited D2 to carry out the robbery and also handled some stolen bracelets, the judge was entitled to hold him equally culpable. The sentence of 6 years and 4 months’ imprisonment was not manifestly excessive.

Consideration

18.  The offence in this case was conspiracy to rob. Inevitably, the participants in such a conspiracy will play different roles; for example, there will be those who recruit other members to the conspiracy, those who take part in the actual robbery, those who drive the getaway car(s), and those who supply the instruments to be used in the robbery. Whilst there is usually a distinction to be drawn in most offences of joint enterprise between an organiser or ringleader and a subordinate player, where the evidence properly establishes those roles, the distinction becomes more blurred where a conspiracy is involved.

19.  In HKSAR v Lo Kam Fai[4], the appellant argued before the Court of Appeal that his role in a gang robbery “was restricted to providing and driving the getaway vehicle, and he was not directly involved in the acts of the robbery itself”. Rejecting this argument, the Court fully endorsed the remarks of the trial judge, who had said[5]:

“You are equally liable in law for everything that your accomplices, the 1^st defendant and the others, actually did when they robbed the victim. And the fact that your role was essentially that of the driver driving them to the scene and to provide the getaway car after the robbery does not entitle you to any lesser sentence.”

Referring to this case in Sentencing in Hong Kong (10^th Ed), the learned authors make the point that joint liability in the context of a gang robbery normally carries with it equal responsibility, even for unexpected consequences[6]:

“The crux of the matter in such circumstances is that the accused has chosen to join an organised and sophisticated criminal gang”.

20.  The reasons for this approach by the courts are readily understandable: firstly, all conspirators are, by the very nature of a conspiracy, usually involved in some aspect of the planning for the offence; secondly, with regard to their precise involvement, it is sometimes “not … possible to differentiate between the (defendants) in any significant way” and, therefore, “the most just course to adopt is to find each (of the defendants) equally culpable and to adopt a similar starting point for them all”[7]; thirdly, all perform vital, albeit different, roles as cogs in the conspiratorial wheel. Thus, it was said in Secretary for Justice v Tso Tsz Kin[8]:

“It is trite that where two people set out to commit a crime together, each taking a different role, but with an awareness of what the other is proposing to do, there should be no distinction made between their sentences based on the roles they have played. Examples of this kind are commonly to be found in cases where a lookout is used at the scene of a crime or where the driver of a vehicle knowingly conveys the participants to and from the scene of the crime. Each plays a vital role in the joint venture and each is liable to be sentenced on an equal footing with the others engaged in the enterprise. If the mastermind of a sophisticated and serious criminal enterprise is revealed, he will, by reason of this additional factor, sometimes receive a heavier sentence than his accomplices.”

21.  This same passage was expressly endorsed in HKSAR v Lai Kam Tong & Anor[9], where the Court also approved an earlier statement of principle in R v Lau Cheung Chan[10], in which the trial judge had been criticised on appeal for not apportioning blame between the defendants in a proper manner. Of this criticism, the Court in Lau Cheung Chan said[11]:

“As to this submission, we can only observe that in circumstances such as this, the participants must bear equal responsibility for what was done.”

22.  If the mastermind of this robbery, who would appear to be M1 or Ah Kei, is arrested and faces trial, it seems to me, on the above principles, that he will face a higher sentence for his more significant role in the conspiracy. That, however, is not a reason to reduce the sentences for these applicants, which are otherwise proper and in conformity with long-held principle where robbery conspiracies are concerned.

23.  As for the suggestion that these sentences are manifestly excessive, one must bear in mind that this was a meticulously planned robbery of a high street jewellery shop with a machete and sledgehammers by a group of masked men in broad daylight. The sentences for the robbery of banks, currency exchange or remittance shops and goldsmith or jewellery shops must carry with them a significant element of public deterrence, because of the large amounts of cash and valuables being carried on the premises, which offer significant temptation to potential robbers. Moreover, the robbery of such premises in broad daylight is regarded as a serious aggravating feature because[12]:

“…violence on the streets can cause widespread panic, even terror and, ultimately, significant trauma for ordinary citizens, in particular children and the elderly, who may witness such a brazen and shocking spectacle in a public place during working hours. Furthermore, there is a real risk that ordinary members of the public may get caught up in the crime and themselves fall victim to it”.

24.  My attention has been brought by the 2^nd applicant to two cases at first instance, where it is suggested lesser sentences for similar robberies have been passed. In the first case, HCCC 215/2021[13], the two defendants were both 16-year old boys, each of whom was, under section 3 of the Interpretation and General Clauses Ordinance, Cap 1, still characterised as a “minor” under the age of 18 years. The sentencing judge found that neither defendant knew the details of the robbery (which was not a conspiracy) before it took place or had any part in its planning, nor did either defendant know that knives were to be carried: each was simply recruited as a “lookout”. There are significant differences between those facts and findings and the present case.

25.  The second case, HCCC 203/2022[14], has given me more cause for concern. The facts involved the robbery (also not charged as a conspiracy) of a goldsmith and jewellery shop in Shanghai Street, in Yau Ma Tei, Kowloon at about lunchtime by six masked men with the aid of knives and hammers. 584 pieces of gold ornament were stolen to a value of HK$1.77 million. The Recorder adopted a starting point of 7 years’ imprisonment on the basis that the defendant arrived slightly later than the others, was not armed with a knife and appeared to be the least involved, although he scooped up some of the gold ornaments, having delivered a “punch” to a glass showcase. The resultant sentence, after a one-fourth discount on his untimely guilty plea, was reduced to 5 years and 3 months. I have to say, however, that this was a very lenient sentence indeed, passed on a 27 year-old defendant, who was not of good character. I do not know whether the prosecution have applied to review the sentence in this case. One would expect that they should have done so, since it appears to be a sentence that is well out of line with established authority.

26.  I note that in adopting the proposed starting point, the Recorder referred to four other sentences passed by different courts at first instance, which had been shown to him during mitigation by defence counsel. Sentences at first instance are, of course, not appellate authorities and are not binding on other sentencing courts of concomitant jurisdiction. Unfortunately, prosecuting counsel in the court below does not appear to have provided the court with any relevant appellate authority dealing with goldsmith or jewellery shop robberies. Had he done so, I cannot imagine the Recorder would have adopted such a low starting point.

27.  Nevertheless, the reference to these two sentencing cases by the 2^nd applicant confirms the point made by Zervos JA in Limbu Binod[15]:

“23. There is always going to be difficulty mounting an appeal against sentence on the basis of a comparison with other cases. As experience has shown, no two cases are exactly alike and there will be differences between them to explain the differences in sentences. However, more importantly, the issue for an appellate court is whether a fair and just sentence was passed in the circumstances of the case, applying the relevant sentencing principles and guidelines. In robbery cases, a sentencing court when assessing the starting point to be adopted will take into account aggravating factors or features that reflect the gravity of the offence and the culpability of the offender, such as the circumstances and location of the robbery, the target of the robbery, the degree of planning and execution involved, the level of force or violence, the extent of the injuries sustained by and impact on a victim or victims, the nature and use of a weapon, the number of offenders, the use of clothing to disguise the identity of the offenders, and the items or property taken.

24. The cases that have been referred to deal with a variety of factors or features that have resulted in substantial starting points being adopted because of their nature and level of seriousness. Each case will depend upon their own particular facts and circumstances.”

28.  On the authorities, I do not see any reasonably arguable grounds of appeal against sentence in the present case and the applications are both refused.

29.  The applicants are advised they have the right to renew their applications for leave to appeal to the Court of Appeal but they are also warned on the consequences of so doing, which may include an order for the loss of any time spent in custody, if the Court of Appeal were to come to the conclusion that there was no merit in the renewal of the applications.