HKSAR v. WONG KA FAI AND OTHERS

HCCC 266 & 354/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 266 AND 354 OF 2014

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

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COURT: The jury, by its verdict, convicted the 1st and 3rd defendants of conspiracy to rob and the 2nd defendant of handling stolen goods which are Count 1 and Count 3 respectively on the indictment.

The 1st defendant pleaded guilty at the outset of the trial to the alternative count of handling stolen goods. It is upon his conviction of Count 1 for which he will be sentenced.

It is clear the jury has accepted that the 1st and 3rd defendants conspired with Fong Siu-yu and others unknown to rob Yang Gengjie of a large quantity of iPhones and Intel CPUs that had been collected in the evening on 4 November 2013 through the transportation services provided by the 3rd defendant. This was a premeditated and well-planned robbery that was co-ordinated and executed with precision and forethought.

The 3rd defendant, in early October 2013, purchased the van. On 25 October 2013, he commenced work for a transportation company that provided transportation services to customers for individual jobs. On 4 November 2013, the 3rd defendant had been contacted by the company to collect goods for Yang. The 3rd defendant picked up Yang from his office in Shing Yip Street, Kwun Tong, at about 8.30 pm and then proceeded to three different destinations in Kwun Tong, Kowloon Bay and Mongkok, collecting a large quantity of iPhones and CPUs. The value of the goods collected was about HK$4 million.

During this time, the 3rd defendant was in constant telephonic contact with the 1st defendant, informing him of the goods that had been collected and making arrangements to stage a robbery. From 8.58 to 9.45 pm, there were 11 calls between the 1st and 3rd defendants. After the last collection, the 3rd defendant was instructed to return Yang and the goods that he collected to his office in Shing Yip Street.

On the return journey, the 3rd defendant suddenly stopped his van outside the Manulife Financial Centre in Wai Yip Street. Yang kept on asking him why he changed lanes and stopped but the 3rd defendant gave him no reply, while he was constantly looking in his rear vision mirror, waiting for his fellow gang members to arrive in their vehicle. A white vehicle was seen arriving where the 3rd defendant had stopped his van, on the CCTV footage, outside the centre.

The 3rd defendant then pulled out the van and turned left into King Yip Street. It was about 10.15 pm. The white vehicle then pretended to have a collision with the van by bumping into the back of it. The 3rd defendant got out of the van and pretended to remonstrate with the driver of the other vehicle. They pretended to have an altercation and fight, while another passenger of the vehicle assisted the driver to bundle the 3rd defendant into the white vehicle.

Meanwhile, two of the gang members entered on either side of the front seat of the van and declared robbery to Yang who was sitting in the passenger seat. The robber who entered from the passenger seat had a cloth over his face and was armed with a foot-long knife. He immediately pushed Yang’s head down and thrust the knife to the back of his neck, telling him not to look at him or to move. They then drove off in the van and a little later pushed Yang out of the van at Wai Fat Road near Laguna City. He immediately made a report to the police on a mobile phone.

Yang later identified the robber who put the knife to the back of his neck as Fong Siu-yu, a colleague of the 1st and 3rd defendants.

Between 4 and 8 November 2013, there were 38 telephone calls between the 1st defendant and Fong.

The 3rd defendant made a report to the police that evening, claiming that he had been assaulted and dragged into the white vehicle which drove off, and then released somewhere in Ma On Shan. His T-shirt was torn and he had some superficial redness, but it was all part of the pretence that he was a victim of the robbery and abducted by the robbers. He attended Prince of Wales Hospital where the police met up with him to make inquiries. On the pretence of assisting the police with their inquiries, he made a statement and he took them to the location where he had been dropped off by the robbers.

In the meantime, at 11.30 pm, the van was found burnt out in Kiu Tau Road near Tai Wo Service Road West. None of the goods that had been collected were found in the vehicle or nearby at the scene. He continued pretending that he was assisting the police with their inquiries until the afternoon of 5 November 2013. Travel records show the 1st defendant, 3rd defendant and Fong variously travelling to Mainland China and returning to Hong Kong during the dates of 5 to 9 November 2013. The 3rd defendant took a copy of his witness statement and gave it to the 1st defendant in Mainland China.

On the 1st defendant’s arrest on 8 November, he is found with the 3rd defendant’s witness statement and banking records which showed he had made a deposit of 154,000 renminbi in a bank account in Mainland China in his name.

Four days after the robbery, at 4.28 pm on 8 November 2013, the 1st defendant, the 2nd defendant and Fong are seen arriving at Sand Martin House at Sha Kok Estate in a Mercedes Benz car, registration number RX 2142. Fong alighted from the car and entered Sand Martin House and, five minutes later, returned with a trolley. The 2nd defendant opened the boot of the car and took out two boxes and a nylon bag. They were put on the trolley and Fong took the items into Sand Martin House. On reaching the 11th floor, Fong opened the padlocked door to Room SR67 and put the two boxes and a nylon bag into the room. Very shortly thereafter, the 1st defendant and 2nd defendant entered Sand Martin House and took the lift to the 11th floor where they met Fong who then led them to Room SR67. They all entered the room. The room was rented by Fong’s grandfather. The 2nd defendant was later observed fetching white adhesive tape from the car and go back into Sand Martin House to the 11th floor to the storeroom. Similar white adhesive tape was used to tape the Intel boxes. He then came down again a little later, after 5 pm, and met a male who was standing next to the car. After a brief encounter, the male then drove off in the car. He waited outside Sand Martin House for the 1st defendant and Fong to come down, which they did at 5.21 pm, when they then departed in different directions.

At 10.22 pm, the police entered Room SR67 and found 72 iPhones and 945 Intel CPUs, part of the goods that were stolen in the robbery of Yang.

I am informed that the value of these goods that were found in Room SR67 was $1.15 million. The overall loss in terms of value of the stolen goods not recovered was $2.85 million.

I will deal with the mitigation of each defendant in turn. The 1st defendant is 38 years of age and has an appalling criminal record. He has been before the courts on 16 occasions and has 34 prior convictions, 11 of which involved dishonest criminal conduct, such as theft, burglary and handling stolen goods. He was last released from custody on 17 October 2013 for a drug-related offence, and some 20 days later, on 4 November 2013, he committed the offence for which he has now being convicted.

Whilst in custody awaiting trial for this offence, he was convicted of wounding on 27 April 2015 and sentenced to 8 months’ imprisonment. I have been asked to take this sentence into account when sentencing the 1st defendant with respect to this offence. It was a separate and distinct offence and I will not take it into account as urged upon me by Mr Alan So for the 1st defendant.

Otherwise there is no meaningful mitigation that has been advanced on behalf of the 1st defendant.

The 2nd defendant is 22 years of age with a clear record. He lives with his family and supports the upkeep of a 3-year-old son that he had with his former girlfriend. Mr Patrick Cheung has submitted the case of The Queen v Webbe & Others [2002] 1 Cr APP R (S) 22, and brought to my attention to paragraphs 18 and 19 of that decision which addressed factors to be taken into account when sentencing a handling offence.

Factors that are identified by the court as significantly affecting the relative seriousness of a handling offence are the level of sophistication of the handling, the ultimate destination of the goods, the criminal origin of the goods, the impact on the victim, the level of profit made or expected by the handler, and in cases of actual or intended disposal of goods, the precise role played by the handler.

Factors identified by the court for handling cases at or towards the lower end of the scale are characterised by the handler having no connection with the original offence, an absence of sophistication on the part of the handler, the less serious nature of the original offence, the relatively low value of the goods and the absence of any significant profit.

Mr Cheung submits that the 2nd defendant has no connection with the original offence and given his degree and duration of involvement in this case, there is an absence of sophistication on his part in the handling of the goods. He also notes that the value of the goods is 1.15 million which was all recovered and there was no loss of the stolen items.

I agree with the points made by Mr Cheung and, on the evidence, the role of the 2nd defendant was relatively minor compared to others and of limited duration. It also concerned with the stolen goods in Room SR67 which were all recovered.

I will therefore impose a sentence of 3 years’ imprisonment on the 2nd defendant.

The 3rd defendant is 30 years of age with a clear record. Although previously married, he is now single and at the time of the offence, lived with his mother. It is submitted by Ms Liza Yip that he has been constantly in employment in the past and his role was limited to making contact with the 1st defendant. Among the points Ms Yip makes, she submits that he did not purposefully purchase the van for the robbery, or that he knew that Fong would use a knife on Yang.

In my view, however, he played a pivotal role in this conspiratorial enterprise and to carry out what is best described as a sophisticated and carefully planned robbery. It not only involved him using his position of trust with the customer and disclosing information to set up the customer for the robbery, but it also involved him pretending he was a victim and deceiving investigative officers.

I will now address the sentence to be imposed on the 1st and 3rd defendants.

There are a number of factors involved in this robbery that makes it a serious case of robbery warranting a severe sentence. The sentencing guidelines for categories of robbery are found in Mo Kwong Sang. There have been a number of subsequent cases that have elaborated or expanded on the guideline principles when sentencing cases of this type.

The aggravating factors in this case are that this was a premeditated and well-planned robbery; that it was a gang robbery involving a number of people; that it was an inside job in that the 3rd defendant was providing transportation services to the victim while at the same time providing information and arranging the robbery with others; that there was a breach of trust in that the 3rd defendant was entrusted to provide transportation services to the victim and not abuse or breach the trust that the victim had placed in him in providing the services for him; that physical violence and threats were made to the victim; that a knife was used on the victim; that the victim was abducted; that goods to the value of $4 million were stolen of which only $1.15 million was recovered; and that a road accident was staged and the 3rd defendant pretended he was a victim as well. This was to deceive investigative officers and to conceal those behind the robbery.

Both the 1st and 3rd defendants, together with Fong, played a major and important role in the planning and execution of this robbery. The fact that the robbery was premeditated and well planned is a serious aggravating factor. This was a joint enterprise crime and they all played a major and significant role in this conspiratorial enterprise. They were not minor players. As I have stated, this was a premeditated robbery that was elaborate in its planning and sophisticated in its execution. It therefore warrants a starting point of 10 years’ imprisonment.

There is no meaningful mitigation that warrants a reduction in the sentence on the 1st defendant or the 3rd defendant. They both played a major and significant role in this conspiratorial enterprise and I will treat them the same for the purpose of sentencing. They are both sentenced to 10 years’ imprisonment.

Accordingly, the 1st and 3rd defendants are sentenced to 10 years’ imprisonment and the 2nd defendant is sentenced to 3 years’ imprisonment.