HKSAR v. LEUNG PUI AND OTHERS

HCCC 295/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 295 OF 2014

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REASONS FOR SENTENCE

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Introduction

1.  On 4 July 2014, the 7 defendants were committed to this court for sentence, having pleaded guilty to attempted robbery in Eastern Magistrate’s Court.  The particulars of the offence were that on 13 September 2013, the defendants attempted to rob Chan Kam Ping (Chan) and Lau Yuk Fan (Lau).

Summary of facts

2.  The facts agreed to by the defendants in acknowledging their guilt of this offence are briefly stated as follows.

3.  In July 2013, the police received information that a change bureau known as Leader Realty Money Exchange Shop (the change bureau) situated at Choi Hung Road, San Po Kong, Kowloon was being targeted by a criminal syndicate.  The owners of the business were a couple, Chan and Lau, whose home address was at Ma Tau Wai Road, Hung Hom, Kowloon.

4.  From late July 2013, the police carried out a surveillance operation in relation to this case.  On 11 September 2013, police officers observed the following events.  At 2:15 pm, the 1^st defendant met up with the 6^th defendant in Cedar Street, Mongkok.  At 3:25 pm, the 1^st and 6^th defendants went to the change bureau where they remained in close proximity to it for a while.  At 3:30 pm, they boarded a Route 5 bus at Yin Hing Street in San Po Kong and got off at Chi Kiang Street in Hung Hom.  They walked to the vicinity of the home of the owners of the change bureau and the 6^th defendant pointed out where it was.  Later at 6:45 pm, the 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th defendants were seen leaving a building in Cedar Street, Mongkok.  Outside the building, they talked together for a while and afterwards the 3^rd, 4^th, 5^th and 7^th defendants boarded a taxi and went to Hung Hom.  They met the 6^th defendant who was standing next to a light goods vehicle.  They got into it and drove off.  The vehicle had been stolen earlier from a car park in the New Territories.  At about this time, the 1^st and 2^nd defendants were observed stationed in the vicinity of the change bureau.  At around 7:30 pm that evening, the owners of the change bureau closed the shop for the day.  They went to the Yin Hong Street bus stop and boarded the Route 5 bus. The 1^st and 2^nd defendants followed them and also boarded the bus.

5.  Two days later on 13 September 2013, police officers observed the following events.  Between 6:45 and 7:40 pm, the 3^rd, 4^th, 5^th and 7^th defendants were present in the vicinity of the Chi Kiang Street bus stop in Hung Hom.  At 7:45 pm, the 1^st defendant was present in the vicinity of the Yin Hing Street bus stop in San Po Kong.  The owners of the change bureau closed the shop for the day.  Chan was carrying a rucksack, containing $341,500 cash.  The couple boarded the Route 5 bus.  The 1^st defendant followed them and boarded the same bus.  While travelling on the bus, the 1^st defendant made some calls on his mobile phone.  At about this time, the 2^nd defendant was waiting at the Chi Kiang Street bus stop.  At one stage, the 3^rd and 5^th defendants had gone separately to the 2^nd defendant and talked to him.  Thereafter, the 3^rd, 4^th, 5^th and 7^th defendants went to a convenience store at Ma Tau Wai Road, Hung Hom, where they waited.  In the meantime, the couple got off the bus at Chi Kiang Street bus stop to go home.  The 1^st defendant also got off the bus and together with the 2^nd defendant, who was waiting at the bus stop, followed the couple.  When the couple walked past the convenience store, the 1^st and 2^nd defendants walked away and the 3^rd, 4^th, 5^th and 7^th defendants took over and followed the couple.  Within moments, the 7^th defendant walked up to Chan and grabbed his legs from behind, bringing him to the ground.  The 7^th defendant then tried to snatch Chan’s rucksack containing the cash.  At this time, the 4^th defendant took out a knife from the rucksack carried by the 3^rd defendant.  He then knocked down Lau and tried to snatch her purse.  The 3^rd defendant took out two knives from his rucksack.  The 5^th defendant took out a knife from his waist area underneath his shirt.

6.  The police operation immediately turned overt and police officers sought to apprehend the defendants.  The 1^st, 2^nd and 4^th defendants were arrested immediately.  The 6^th defendant was also arrested who was seated inside the stolen light goods vehicle which was parked nearby. 

7.  A police officer attempted to arrest the 3^rd defendant but he resisted.  He wielded the two knives he had in his hands and tried to attack the officer.  Each knife was about 1 foot long.  The officer drew his pistol and pointed it at the 3^rd defendant in order to stop him.  He then ran away and dropped the knives onto the ground.  He was eventually arrested by the officer.

8.  A police sergeant attempted to arrest the 5^th defendant who was also armed with a knife which was about 1 foot long.  A struggle ensued and the sergeant fell to the ground.  The sergeant drew his pistol but the 5^th defendant ran away.  Another police officer came to assist and attempted to arrest the 5^th defendant.  The 5^th defendant used his knife to attack the police officer.  A struggle ensued and the 5^th defendant slashed the right knee of the police officer with his knife.  The 5^th defendant was eventually restrained and arrested.  The police officer suffered a 3 cm wound to his right knee and abrasions to his left elbow and mouth.  He received medical treatment for the wound which required 8 stitches.

9.  The 7^th defendant managed to escape and got into a taxi.  He told the taxi driver to take him to Cedar Street in Mongkok.  He used the taxi driver’s mobile telephone and attempted to contact the 1^st defendant on his mobile telephone on six occasions.  He sought refuge in the building but police officers soon arrived and chased after him. He was eventually arrested on the 1^st floor of the building.

10.  The couple sustained injuries as a result of this attempted robbery.  They were indeed fortunate that the injuries they received were not a lot more serious than they were, and probably would have been, if not for the intervention by the police.  Chan who was 51 years of age suffered abrasions to the area of his left eye, both of his knees, his left elbow and his fingers on both hands.  Lau who was 53 years of age suffered superficial abrasions to her right foot, right knee and right upper arm, as well as mild tenderness to her right knee and right shoulder.

Factual basis for plea and sentence

11.  When an accused pleads guilty, a summary of facts is usually submitted to the court as the factual basis for sentence.  It is imperative therefore that all relevant facts are before the court and that the summary of facts reflects the true facts of the case as disclosed by the evidence.  Facts agreed for the purpose of sentence are made pursuant to section 65C of the Criminal Procedure Ordinance, Cap 227.  See R v Siu Kwong-wing, Cr App 528/1992, 2 April 1993, unreported.  A fact admitted under section 65C is conclusive of the assertion made and can only be withdrawn with the leave of the court.

12.  I mention this, because included in the admitted facts were summaries of what each defendant said in his cautioned interview.  The summaries contained either exculpatory or mixed exculpatory and inculpatory statements by the relevant defendant.  The first problem is that the exculpatory statements are inconsistent with the guilty plea and the rest of the admitted facts which acknowledged the guilt of the defendant.  The second problem is that each of the defendants has admitted as a fact against him the summaries of the cautioned interviews of the other defendants.  The situation can arise where what is admitted as having been said in a cautioned interview is wrong or inconsistent with the guilty plea and the rest of the admitted facts.  Take the case of the 1^st defendant as an example.  In his summary, it was stated that he maintained during his interview that he had nothing to do with the whole incident, but in the 2^nd defendant’s summary, which the 1^st defendant admitted, he stated that on 13 September 2013 the 1^st defendant asked him to act as a lookout later that day but did not know that the 1^st defendant and others were to commit a robbery.  What the 2^nd defendant said in his interview contradicted the 1^st defendant’s account of his involvement in the case, and the 2^nd defendant’s account of his involvement was contradicted by the rest of the admitted facts.

13.  Care should be taken when agreeing facts for the purpose of plea and sentence.  A summary of a cautioned interview in a summary of facts can, as illustrated, create problems for a sentencing court, especially when two or more defendants are involved.  Accordingly, I have, with the consent of counsel for the defendants, treated the summaries of the cautioned statements of the defendants as an admitted fact against the defendant who made the statement and excluded any statement therein which is inconsistent with the facts admitted in acknowledgement of the defendant’s guilt of the offence of attempted robbery.

14.  There is a distinction between a summary of the prosecution case and a summary of facts.  A summary of the prosecution case sets out the evidence that the prosecution will seek to prove against the relevant accused in order to establish the guilt of the accused of the offence charged.  This may include evidence that is admissible against one accused but not another, such as, admissions made under caution.  A summary of facts provides the factual basis for plea and sentence and sets out all relevant and true facts based on the evidence of the accused’s guilt of the offence to which he has pleaded guilty.

Tariffs for armed robbery

15.  The leading case setting tariffs after trial for armed robbery cases is R v Mo Kwong-sang [1981] HKLR 610.  The Court of Appeal suggested that an appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to the victim, should normally be a term of imprisonment of 5 years, which would be increased to 6 years if it also involved an invasion of private premises, and to 7 years if it further involved any physical violence on a victim.  The suggested sentences are subject to appropriate adjustment for any aggravating or mitigating factors.

The offence

16.  This was a carefully planned and well organised robbery that was to be executed with force and callous disregard to the victims.  The 7 defendants were brought together to each play a role in carrying out this armed robbery.  The 1^st, 2^nd and 6^th defendants observed and monitored the couple beforehand in order to establish their daily routine and movements so as to plan the robbery.  The robbery was carefully and professionally executed.  A vehicle was stolen and false number plates replaced the existing ones.  It was arranged for the vehicle to be located nearby where the robbery was planned to take place with the 6^th defendant at the ready to drive off with the other defendants after the robbery.  The 1^st defendant followed the couple on the day, monitoring their movements and alerting the 2^nd defendant of their impending arrival at the bus stop in Chi Kiang Street.  The others, the 3^rd, 4^th, 5^th and 7^th defendants were waiting nearby at a convenience store.  They took over from the 1^st and 2^nd defendants, who had been following the couple when they got off at the bus stop.  Moments later the 4 defendants pounced on the couple.  The 7^th defendant attacked Chan and the 4^th defendant attacked Lau.  They were both brought down to the ground as they struggled with their assailants.  The 3^rd and 4^th defendants armed themselves with knives that they had brought along and the 5^th defendant produced a knife that he had on him.  When the police tried to arrest the defendants, the 3^rd and 5^th defendants had no hesitation in using their weapons.  In the struggle that ensued between the 5^th defendant and a police officer, the police officer sustained a knife wound to his right knee.

Background and mitigation of defendants

17.  The 1^st defendant is 54 years old.  He was educated to primary school level and has had a poor and chequered employment history doing mainly part time manual work, although at the time of the offence he was receiving social welfare assistance.  He has a bad criminal record. Since 1976 he has been convicted of an array of crimes involving drugs and violence.  He has a string of prior convictions for robbery and burglary.  His last date of discharge from prison was 11 April 2013.  He is a recidivist who has shown a blatant disregard and disrespect for the law.  As a result of his repeated offending, he poses a serious danger to the community.  He said in his cautioned statement that he had nothing to do with the attempted robbery but it is clear from the evidence that he played a principal role as a planner and organiser.

18.  The 2^nd defendant is 53 years old.  He was educated to primary school level and has had a poor employment history doing mainly various odd jobs.  In mitigation, it was submitted that he was a merchandiser.  He has a bad criminal record having been convicted on two prior occasions of robbery. The first occasion was in 1993 when he was sentenced to 8 years’ imprisonment for two robberies in which he used an imitation firearm, and the second occasion was in 2009 when he was sentenced to 5 years’ imprisonment.  He was released from prison for the last offence on 20 February 2012.  He is a recidivist who has not been deterred by his past encounters with the law and he poses a serious threat to the community as a repeat offender.  In his cautioned statement, he claimed that he was asked by the 1^st defendant to be a lookout, but from the evidence, he was involved in monitoring the movements of the couple and planning the robbery.

19.  The 3^rd defendant is 36 years old.  He was educated to primary school level.  He has had various factory jobs in the past but was unemployed at the time of arrest.  He was married and has a son but he is now divorced and lives alone in the Futian District, Shenzhen, China.  The 3^rd defendant armed himself with two knives which he used when he tried to attack a police officer.  I reject the submission in mitigation that he used the knives out of panic.  He said in his cautioned statement that he got involved to pay off a debt and sneaked into Hong Kong with a person named “Ah Keung”.  He was told by Ah Keung that they were collecting a debt and that he was to brandish a knife to stop any bystanders getting involved.  Little if anything is known about his background and past record.  It is appropriate that I take into account that he is not a resident of Hong Kong and that he has come here illegally for the purpose of carrying out a serious crime.  This I will also do in the case of the 4^th, 5^th and 7^th defendants.

20.  The 4^th defendant is 38 years old.  He was educated to secondary school level.  He has worked as a salesman but was unemployed at the time of his arrest.  He is married with two children and resides in Da County, Sichuan, China.  He said in his cautioned statement that he sneaked into Hong Kong to help the 7^th defendant collect a debt.  He has a criminal record in Hong Kong.  Since 2000, he has been convicted on a number of occasions of remaining unlawfully in Hong Kong.  He has also been convicted of assaulting a police officer and stealing.  His last date of discharge from prison here in Hong Kong was 19 January 2010.

21.  The 5^th defendant is 37 years old.  He was educated to secondary school level.  He has worked as a clerk and supervisor in a factory. He is married with two young children and resides with his wife in Futian District, Shenzhen, China.  He has a criminal record in Hong Kong for attempted robbery and remaining in Hong Kong unlawfully in 1995 and for remaining in Hong Kong unlawfully in 2003.  His last date of discharge from prison was 4 May 2004.  He fought with the police when they tried to arrest him and he inflicted a knife wound on one of the police officers.  He displayed violent behaviour during the attempted robbery.  He said in his cautioned statement that the 7^th defendant asked him to do a job in Hong Kong.  They sneaked into Hong Kong together and went to Cedar Street in Mongkok where they met the 3^rd and 4^th defendants.  The 7^th defendant told him to use a knife to frighten a man and a woman.

22.  The 6^th defendant is 50 years old.  He was educated to secondary school level.  He has worked previously as a transportation worker and technician.  He is currently unemployed and of no fixed abode.  He is married with three children but has not maintained contact with his family for the last 7 years.  In mitigation, he claimed that he had made contact with them but given the time he has been in prison it would be rare indeed.  He said in his cautioned statement that he was asked by a friend to steal a car and to buy a pair of false plates.  His friend also asked him to transport some people and he was given the 1^st defendant’s mobile telephone number.  He has a bad criminal record and has numerous prior convictions for theft.  His last date of discharge from prison was 25 July 2013.

23.  The 7^th defendant is 36 years old.  He was educated at secondary school level.  He previously worked as a farmer and his last mode of employment was doing odd jobs.  He is married with two young children and resides with his family in Futian District, Shenzhen, China.  He said in his cautioned statement that he came to Hong Kong illegally to collect a debt.

Sentences

24.  A gang robbery involving weapons and a preparedness to use them warrants severe punishment.  Such a crime involves a coordinated and joint effort by all persons involved.  The planning and coordination of the gang, the number of gang members involved and the provision of weapons displayed a determination desire to carry out the gang’s criminal objective at whatever the cost, even if it was to cause injury to others.  In this case, the defendants were armed with knives and displayed a clear preparedness to use them not only on the victims but also on the police when they sought to apprehend them at the time of the offence. It was a dangerous situation, and if not for the actions and bravery of the police, could have resulted into something much more serious.  The importing of other persons from mainland China to assist in a criminal enterprise in Hong Kong is to be condemned and is a serious aggravating factor.  It was no coincidence, and in my view clearly part of the planning of this crime, that the 4 defendants who actually carried out the physical robbery were the imports from mainland China.  It would be them, that the victims or anyone else would observe or identify, and that who would promptly leave the jurisdiction after the robbery and be hard to trace.

25.  In relation to the 1^st defendant, I impose a starting point of 12 years’ imprisonment which I enhance by 2 years for his role as an organizer and planner of the robbery, including bringing imports from Mainland China to do the physical robbery, and for his repeated offending for offences of this type.  I reduce his sentence by one third for his guilty plea and sentence him to 9 years and 4 months’ imprisonment. 

26.  In relation to the 2^nd defendant, I impose a starting point of 12 years’ imprisonment which I enhance by 1½ years for his role as a planner of the robbery and for his repeated offending for offences of this type.  I reduce his sentence by one third for his guilty plea and sentence him to 9 years’ imprisonment.

27.  In relation to the 3^rd defendant, I impose a starting point of 12 years’ imprisonment which I enhance by 1½ years for coming here illegally from Mainland China to commit a crime and for resisting arrest with the use of knives.  I reduce his sentence by one third for his guilty plea and sentence him to 9 years’ imprisonment.

28.  In relation to the 4^th defendant, I impose a starting point of 12 years’ imprisonment which I enhance by 6 months for coming here illegally from Mainland China to commit a crime.  I reduce his sentence by one third for his guilty plea and sentence him to 8 years and 4 months’ imprisonment.

29.  In relation to the 5^th defendant, I impose a starting point of 12 years’ imprisonment which I enhance by 1½ years for coming here illegally from Mainland China to commit a crime and for resisting arrest and wounding a police officer with a knife.  I reduce his sentence by one third for his guilty plea and sentence him to 9 years’ imprisonment.

30.  In relation to the 6^th defendant, I impose a starting point of 12 years’ imprisonment which I enhance by 1½ years for his role as a planner of the robbery and for his repeated offending for offences of this type.  I reduce his sentence by one third for his guilty plea and sentence him to 9 years’ imprisonment.

31.  In relation to the 7^th defendant, I impose a starting point of 12 years’ imprisonment which I enhance by 1 year for coming here illegally from Mainland China to commit a crime and resisting arrest.  I reduce his sentence by one third for his guilty plea and sentence him to 8 years and 8 months’ imprisonment.