HKSAR v. CHEUK CHUN HO AND OTHERS

DCCC 697/2022

[2024] HKDC 151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 697 OF 2022

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REASONS FOR SENTENCE

D1 to D3 are jointly charged with an offence of "Robbery" (Charge 1). D1 alone is also charged with an offence of "Dangerous driving" (Charge 2). They all pleaded guilty to the respective offences.

Summary of Facts

Charge 1

2.  About 3:00 a.m. on 14 January 2022, Mr. Mok (PW1)  was at the junction between Bute Street and Tung Choi Street in Mongkok ("the Location").  Suddenly, a black private car displaying plate number MJ518 ("the Black Car")  driven by D1 stopped abruptly behind PW1.  D2 and D3 (both wearing masks and each holding a beef knife)  alighted from the Black Car and shouted at PW1, telling him not to leave and to surrender his shoulder bag (which contained HK$5,970 and RMB1,800 cash).

3.  D2 ran towards PW1, raised the beef knife in his left hand and grabbed the strap of PW1's shoulder bag with his right hand.  D2 snatched the shoulder bag and ran. PW1 gave chase.  D3 also ran away heading towards Sai Yeung Choi Street South.

4.  PC 15406, who was in an unmarked police vehicle (PV1)  parked nearby, witnessed the incident and informed his colleagues.  He saw D2 and D3 trying to board the Black Car but they fled upon seeing the Police.  PC 12386 and PC 10897 pursued D2 and D3 respectively on foot.  D2 ran towards Fa Yuen Street; whereas D3, Sai Yeung Choi Street.  During the pursuit, D2 and D3 discarded their beef knifes; and D2 chucked PW1's shoulder bag on the road, which was picked up by PW1.  The police officers eventually subdued and arrested D2 and D3.  The 2 beef knifes were also retrieved by the Police.

Charge 2

5.  Meanwhile, D1 was still at the Location.  He refused to alight from the Black Car despite repeated warnings given by police officers.  At that time, the Black Car was boxed in by PV1[1] and 2 other unmarked police vehicles[2] (PV2 and PV3[3]).  PV2 and PV3 stopped respectively at the rear and offside of the Black Car; whereas PV1, in front of the Black Car.

6.  Suddenly, D1 increased the speed of the Black Car and rammed into the front offside of PV1.  He then reversed the Black Car and rammed against the front of PV2.  He then swerved the Black Car to the right and rammed into the front nearside of PV3.  D1 failed to escape and was arrested.  As a result of D1's driving, the front offside bodywork of PV1, the front bumper of PV2 and the front nearside of PV3 were damaged.

Police investigation

7.  The Black Car is owned by a car rental company.  Its real registration number is XH6220. It was leased to a Mr. De Souza since 18 November 2021.

8.  The licence plate "MJ518" was pasted on top of the real licence plate "XH6220".  D3's left thumb print was found on the bottom of the "MJ518" rear plate.

9.  Four mobile phones (2 gold iPhones, 1 black iPhone and 1 OPPO), 2 knife sheaths and the Hong Kong Identity Cards of D1 to D3 were found in the Black Car.

10.  Under caution, D1 admitted that one of the 2 gold iPhones (with phone number 5180 7575)  belonged to him (confirmed by subscriber check as well).  D3 admitted that the OPPO phone belonged to him.  D3's mobile phone contained Telegram conversations with an account named "On99", which was registered with phone number 9347 7195 (a pre-paid SIM card).  According to D3's Telegram conversations with "On99", from 10 January 2022 onwards, a plan for robbery was discussed, with the target being identified.  On 11 January 2022, D3 told "On99" that he was scouting at Bute Street/Fa Yuen Street.

Video recorded interviews ("VRIs")

11.  In his 2^nd VRI, D1 admitted that about 1:00 a.m. on 14 January 2022, he was instructed by D3 to pick up the Black Car at Hoi Sham Park.  D1 would be paid no more than $10,000 for driving the Black Car to assist in beating up someone.  D2 then boarded the Black Car claiming he was instructed by D3.  About 1:30 a.m. on the same day, D1 drove the Black Car to pick up D3 at Sai Yee Street/Bute Street in Mongkok.  D3 received a phone call around 3:00 a.m. and asked D1 to stop the Black Car somewhere near Sai Yee Street/Bute Street.  D2 and D3 then alighted from the Black Car holding some long objects.

12.  In his 2^nd VRI, D2 admitted that he was on board of the Black Car with 2 other persons around 1:00 a.m. on 14 January 2022.  He was waiting for the instructions from the front seat passenger (i.e. D3)  to rob.  D2 boarded the Black Car knowing that he was assisting someone to rob.  D3 told D2 that PW1 was the target.  D2 then alighted from the Black Car and approached PW1 with a knife he picked up from the passenger seat.  D2 admitted pointing the knife at PW1 and asking him for his bag.  D2 was told that he would be rewarded for about $30,000 for committing the robbery.

13.  In his 2 VRIs, D3 admitted having committed the robbery together with 2 other persons. D3 claimed that he was instructed by someone to rob PW1, who had a big sum of cash, at Sai Yee Street/Bute Street.  D3 was told to arrive at the Location around 3:00 a.m. on 14 January 2022.  D3 was picked up by D1 and D2 in the Black Car and taken to Mongkok.  Between 1:30 a.m. and 3:30 a.m. on 14 January 2022, D3 was waiting for the target at Sai Yee Street/Bute Street.  When they saw PW1, D3 and D2 alighted from the Black Car each holding a knife.  D3 left the scene when he saw D2 having taken PW1's bag.  D3 dropped his knife when he saw the Police.  D3 also explained the Telegram conversations he had with "On99".

14.  Police investigation revealed insufficient evidence against Mr. De Souza in relation to the robbery in this case.

Mitigation

D1

15.  He is 27 and has 3 conviction records, which involved 2 drug-related offences and 1 violence-related offence. His counsel Mr. Tse informed me that D1 has 2 children (aged 7 and 4)  with his ex-girlfriend; they are looked after by D1's maternal grandmother.  In mitigation, Mr. Tse submitted that D1 was a driver earning about $10,000 per month.  He did not have enough work during the pandemic.  He committed the present robbery out of greed.  Regarding Charge 2, Mr. Tse explained that D1 naturally wanted to escape from the Location, but he was boxed in by 3 police vehicles.  He could not possibly have been able to escape.

D2

16.  He is 34 and has 8 conviction records, which involved 3 "Theft" offences, 3 violence-related offences and several drug-related offences.  His counsel Mr. Wong informed me that D2 is single and resides with his parents and a younger brother.  In mitigation, Mr. Wong submitted that D2 lost his bartender job in mid-2021 owing to the pandemic.  Mr. Wong explained that at the time of the offence, D2 was unemployed for 6 months; his girlfriend was pregnant; and his younger brother was in university.  D2 committed the robbery due to financial pressure.

D3

17.  He is 30 and has 3 conviction records, which involved 2 violence-related offences and 1 drug-related offence.  His counsel Mr. Cao informed me that D3 is single and resides with his parents.  In mitigation, Mr. Cao submitted that D3 lost his job as a kitchen worker in late 2020 owing to the pandemic.  Mr. Cao explained that D3 was recruited by a childhood friend to commit the robbery.  D3 had no intention to harm PW1; he committed the offence due to financial pressure.

Sentence

18.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime.  A clear message must be conveyed to the general public that robbery is a serious crime and that the offenders would most certainly be punished by long-term imprisonment.

19.  According to the Court of Appeal's decision in Mo Kwong Sang v The Queen [1981] HKLR 610, the appropriate sentence in an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon which he displayed to his victim, should be 5 years' imprisonment. The present robbery was a 3-man job targeted at a specific victim in the early hours. A car with bogus licence plates and a driver was arranged in advance. D2 and D3 each held a knife and at least one culprit pointed his knife at PW1. PW1 was not injured and cash in a total sum of about HK$8,000 was robbed (but recovered later).

20.  D1 to D3 might have each played a different role, but they acted as a joint enterprise and are equally culpable. For the purpose of sentencing, there is no need to distinguish their roles or to apportion their culpability. I am also aware of their criminal records; none of them have previous "Robbery" convictions. Having balanced all factors, I consider a starting point of 5 years' imprisonment just and appropriate. With the timely guilty plea, the sentence is reduced to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence each defendant to 40 months' imprisonment for Charge 1.

21.  Regarding Charge 2, D1 obtained his driving licence in April 2016. He has 12 speeding tickets and 3 other fixed penalty traffic violations. Even though I agree with Mr. Tse that D1 could not possibly have escaped, his driving manner was reckless and far below standard. Despite being boxed in by PV1 to PV3, he still drove in such a dangerous way in order to avoid apprehension by the Police. Fortunately, no police officers or passers-by were injured. Based on the relevant photographs, I accept Mr. Tse's submission that the damage caused to PV1 to PV3 was not serious.

22.  I have considered the Court of Appeal's decision in SJ v Ko Wai Kit, Paul [2001] 3 HKLRD 751. An immediate custodial sentence is required. Bearing in mind that the maximum prison term for this offence is 3 years, I adopt a starting point of 6 months. With the timely guilty plea, the sentence is reduced to 4 months. I sentence D1 to 4 months' imprisonment for Charge 2.

23.  Charge 2 seems to be a continuation of Charge 1, but it is not. In my view, the 2 charges are separate and distinct to a very large extent. Had D1 decided to alight from the Black Car as ordered by the police officers and to surrender himself, Charge 2 could have been completely avoided. Notwithstanding the totality principle, I order the sentence in Charge 2 to run consecutive to Charge 1. In other words, the total prison term for D1 for both charges is 44 months.

24.  For Charge 2, a disqualification order is inevitable. I have borne in mind the comments made by the Court of Appeal generally on disqualification orders in SJ v Hung Ling Kwok [2010] 4 HKLRD 365 and HKSAR v Chan Kim Ching CACC 69/2014[4]. I make a disqualification order against D1 for a period of 12 months[5] (and the disqualification period will start to run from the date of sentencing[6]). I also order D1 to complete a driving improvement course at his own expense within the last 3 months of his disqualification period[7]. In my view, it is unnecessary to order D1 to re-take his driving licence test.