COURT: In passing sentence I am dealing with two separate cases, which are HCCC 189 and HCCC 188. 189 involving the defendant, Chan Chun-ming, Jeremy, whom I shall refer to as “Chan” in my reasons; and in case number HCCC 188, I shall refer to -- he is Khaliq Salman, also known as Khalia Salman, and I shall refer to him as “Khalia”. I shall sentence them together because they have both pleaded guilty to the same offence of conspiracy to rob.
For Chan, although his case number is higher, 189, he pleaded guilty at an earlier date than Khalia. Chan pleaded guilty to the charge of conspiracy to rob on 20 September 2021 at the Eastern Magistracy. He was then committed to the High Court for sentence. At that time, Khalia pleaded not guilty and his case was committed to the Court of First Instance for trial.
As a little bit of background in respect of Khalia, his original trial date was 21 April 2022. However, because of gap during the Covid pandemic, this trial date was vacated. The defence/Khalia was informed on 24 March 2022, a month before that trial date, that his trial would be refixed to 24 April 2023. So one month before the original trial date, Khalia had still not intended to plead guilty.
After the new trial date had been fixed, his solicitors informed the prosecution by letter on 16 August 2022 that Khalia would plead guilty to the offence of conspiracy to rob. He was prepared to plead guilty and give information as a prosecution witness against persons named in the indictment. At that time, the counsel on fiat, Mr Steve Chui replied on 22 August that if Khalia wanted to give an NPS, a non-prejudicial statement, then he would have to contact the prosecution directly.
On 24 October 2022, Khalia gave his first NPS, and his case came up for plea and sentence on 23 March 2023. As the plea and sentence hearing was before a deputy judge, and a further NPS was to be taken from Khalia, the deputy judge did not take plea and eventually the defendant, that is Khalia, pleaded guilty before myself on 28 April 2023, whereby he also admitted to the amended facts.
The charges against Khalia and Chan relate to a conspiracy to rob a person known as Miss Guan Yan-fen. The slight difference in the charges to which Chan and Khalia pleaded guilty to is as to the dates of the conspiracy and the persons named. In respect of Chan, he admitted that between a day in November 2019 and 10 January 2020, in Hong Kong, he conspired together with a person known as “M”, and a person known as “H”, and other persons unknown, to rob Guan. In relation to Khalia, Khalia admitted that on 10 January 2020, in Hong Kong, he conspired together with Hameed Mohammad Adil, Duraim Ali, Ahmad Ali, and another person unknown, to rob Guan.
The reason for the different dates of conspiracy and the persons named will become apparent in my reasons for sentence.
The Facts
At around 9.39 am on 10 January 2020, police officers on patrol spotted a stationary vehicle bearing registration number SV1715. I shall call this from now on as the “grey vehicle”. It was stopped at Tin Wu Road, Sherwood Court of Kingswood Villas in Tin Shui Wai. When the officers intercepted the grey vehicle for investigation, they found Khalia and three other persons on board the vehicle.
A search was conducted inside the grey vehicle, and upon search one machete contained inside a plastic sheath was placed between the front passenger seat and the nearside front door. A badminton racket bag containing a machete inside a plastic sheath, as well as an empty rucksack, was found inside the boot of the vehicle. Five pairs of gloves, one pack of plastic strips, two rolls of duct tape, a scarf and an unopened face mask was also found at the left rear passenger seat. A face scarf was found at the right rear passenger seat.
Meanwhile, found on the defendant and the other persons in the vehicle were items such as face scarves and mobile phones.
The other persons on the vehicle were, namely, Hameed Mohammad Adil, who I shall refer to as “Person 1”; Duraim Ali, who is “Person 3”; and Ahmad Ali, “Person 4”. These are the co-conspirators named in Khalia’s charge.
Police soon found that the two licence plates placed at the front and rear of the grey vehicle were found to be false.
It was discovered that Chan had been the registered owner of this grey vehicle since 2014. On that day, 10 January 2020, the police contacted Chan for verbal inquiries. Chan told the officer that the vehicle had been placed at his friend’s garage for sale since mid-2019.
Upon inspection of Hameed, that is Person 1’s mobile phone that day, it revealed a photo of Madam Guan. This photo was subsequently shown to Guan and Guan identified herself in the photo. Guan stated that she was the proprietress of a money exchange shop at Kingswood Richly Plaza, situated at Tin Wu Road in Tin Shui Wai. I shall refer to this as the money exchange shop. She had been operating the shop there since 2012. This shop, the money exchange shop, was around 300 metres away from where the grey vehicle and Khaliq and the others were intercepted.
Guan stated that since July 2019, Chan had been coming to her money exchange shop to exchange renminbi. She had exchanged phone numbers with Chan and they had subsequently kept in contact on WhatsApp and WeChat.
On 14 January 2020, Chan was intercepted and arrested at the Hong Kong International Airport when he was trying to leave Hong Kong for Taiwan. Upon arrest, and under caution, Chan remained silent.
I shall now detail with the subsequent interview under caution with Chan and Khaliq. Chan stated that he had been trying to sell his grey vehicle since November 2019. He was a proprietor of a restaurant, however, the business of his restaurant was affected by the anti-extradition bill protest and he estimated that he would close all the branches of his restaurant in the future. His friend H introduced him to M, a South Asian male, who could speak English and Chinese. M was interested to purchase his grey vehicle and he agreed to sell it to M at HK$25,000. M had paid 5,000 down payment for the grey vehicle and it was H who collected the down payment for him. However, M had not paid him the remaining purchasing price of the grey vehicle and H had not given him the $5,000 down payment.
In or about November or December 2019, whilst M, H and Chan were at a restaurant in Yuen Long, they discussed and mentioned that the society was in chaos and there were lots of protests and people throwing petrol bombs; and if there were robberies, the police would not attend to them and would not make any arrests. Chan then told M and H about Guan being the proprietress of the money exchange shop. He had also shown them the previous transactions he had had with Guan on his mobile phone and showed them a photo of Guan on his WeChat app on his mobile phone. M and H then took a photo of Guan from his mobile phone. He stated in his video recorded -- in his interview that he was familiar with the setting of the money exchange shop and he had been acquainted with Guan.
After Chan had supplied the information to M and H, they told him that they would rob the money exchange shop. M and H told Chan that they intended to use his grey vehicle to commit the robbery. They told him after they had committed the robbery and got the money they would use the robbed money to settle the remaining purchase price of the grey vehicle and would also share the proceeds of the robbery with him. Chan agreed to such arrangement and agreed to let M and H use the vehicle to commit the robbery. He however said he did not know the exact details as to how M and H were going to rob the money exchange shop. They also did not tell him how much money they would give him from the robbery. He knew that M subsequently recruited some Indian/Pakistani people to carry out the robbery.
Subsequently, he learnt from the news about four South Asian persons who had been arrested by the police for planning to rob the money exchange shop. He was afraid he would be arrested. As a result, he bought a plane ticket with a view to fleeing to Taiwan. He said he had no knowledge about the four non-Chinese males on board his vehicle, who were arrested by the police. He also had no knowledge as to the other items found inside the grey vehicle. He told the officers that he did not have any debts, but he owed the rent to his landlord in the sum of about $1.1 million.
Regarding the cautioned interview with Khalia, he stated he was acquainted with Persons 1 and 4, that is Hameed and Ali. Ali had offered him his job to rob a female of a large amount of money. They came to collect him in the grey vehicle and there was another person inside. On the way to Tin Shui Wai, they collected a Pakistani male, who he had seen on a few previous occasions, get inside the vehicle with a badminton racket bag containing machetes. They then drove to Tin Shui Wai.
Person 1 had given them their respective roles. It was Person 3 and the Pakistani male who got in the car with the badminton bag would carry the machetes and would look for Guan in the money exchange shop. Khalia was told he was to bring a bag in order to carry the money. When they arrived at the bus stop in Tin Shui Wai, Person 1 and the wanted person got off the vehicle and said they would come back. He later saw Person 1 coming back to the vehicle alone and saw Person 1 changing the car plates, both the front and rear car plates of the grey vehicle. They were then intercepted and arrested by the police.
Khalia said he did not know the address of the money exchange shop. He said that Person 1 was the mastermind who was responsible for instructing the others to go to the money exchange shop with the machetes to commit the robbery. Person 3 and the wanted person would actually rob Guan with the machetes and he would be responsible for running away with the robbed money. The backpack inside the vehicle would be used for carrying the robbed money. He said that Person 1 gave each of them a face mask and asked them to use it when they committed the robbery. When Khalia was shown the photo of Guan inside Person 1’s mobile phone by the police, he confirmed this was the photo shown to him by Person 1 at the material time.
I turn first to deal with the mitigation advanced by counsel for Chan, Mr Alan So’s mitigation.
Sorry, I just say for the record that the named conspirators in Khalia’s case are different from that of Chan’s case in that they mention the persons, as I have mentioned just now, Hameed Mohammad Adil, Duraim Ali and Ahmad Ali, as well as other persons unknown.
Turning to Mr So’s mitigation. Mr So has written mitigation on behalf of Chan. Firstly, Chan, he says, had pleaded guilty at the very first available opportunity. He is very remorseful for what he has done to society and made a full confession of his crime he committed upon his arrest on 14 January 2020. Therefore, Chan is entitled to have his one-third discount from the starting point.
Chan is 41 years of age. He has received education in Hong Kong up to university Year 1. He was a merchant at the time of his arrest and was operating a restaurant at a loss. He was in serious debt then. He says Chan suffers from high blood pressure and sleep apnea. He was divorced in 2014. He has one son, aged 15 and one daughter, aged 13 with his ex-wife, and now lives with his girlfriend and they have a son, aged 5. Chan was the sole breadwinner of his family. Mr So says as a result of his incarceration, his family members have suffered.
In further mitigation, which is not stated so clearly in Mr So’s written mitigation, is the fact that Chan made a full confession upon his arrest and the prosecution will have had difficulties to prove its case against him without his confession.
I have received before me letters from Chan himself and his sister, as well as other people from the church and the Society of Rehabilitation and Crime Prevention. It is clear to me from what I have read, and from Chan himself, that he has endeavoured to turn a new leaf. He is very remorseful for his -- commission of this offence and he seeks to better himself by taking courses, particularly in theology and when he is released intends to turn anew.
I also have a letter from his girlfriend to say that she is facing very hard times to bring up their son on her own without the support of Chan.
The parishioners who have seen Chan, or Chaplain in court, all give him very glowing reports. They say they fully support him and will support him even when he is released.
Mr So has referred to the case of Mo Kwong Sang v R regarding -- the well-known case of Mo Kwong Sang regarding sentencing for robbery with knives. He has also referred the court to the case of HKSAR v Tsang Chi Ling and Kwok Ka Shun, HCCC 63/2014, to which Zervos J (as he then was) gave reasons for sentence which Mr So says was of similar facts to the present and seeks the court to impose a similar starting point in that case of about 7½ years’ imprisonment. He recognises that this case is not binding on this court. Chan is of clear record.
I turn now to the mitigation put forth by Mr Khalia’s counsel, Ms Patricia Elisa Alva. She has also submitted her written mitigation to the court. In her mitigation she says the defendant was aged 33 at the time of the offence; he was educated up to Primary 5. He arrived in Hong Kong in March 2009. He is a Form 8 holder. He is a person who has 11 previous convictions; none similar, but mostly of dangerous drugs. It is her mitigation that if anything good has come out of the incident, it is the defendant is no longer a drug abuser.
She explains that the defendant became involved in this conspiracy to rob because at that time he was a drug dependent and so-called ‘easy target’. It is her mitigation that as soon as the defendant was arrested, under caution he admitted this offence. It is of note that on 10 January 2020 when he was arrested, he was then charged only with possession of offensive weapons. He had confessed, however, to the full account of this robbery.
She has referred me to the video recorded -- sorry, to the interview whereby Khalia, during his interview, was under the impression that he was answering questions as a prosecution witness and police had told him that the court will take everything into consideration. She has also informed the court he was all along willing to be a prosecution witness and therefore gave his non-prejudicial statements.
However, despite his full confessions and despite the arrests of the other South Asians on the day in question, those South Asians were released and not charged, and the defendant was instead charged with this offence of conspiracy to rob. He therefore clearly feels a sense of grievance. However, he still admitted, and did admit, to the commission of this offence.
The prosecution, through Ms Grace Chan, had informed Ms Alva yesterday as she had just lately took over the case from Mr Steve Chui, that the prosecution have considered the two non-prejudicial statements given by Khalia have a -- however, it was the prosecution’s stance that his assistance was insufficient to charge the co-conspirators and was of no value to the authorities.
The defendant was born in Pakistan as I mentioned and came to Hong Kong in 2009. It is Ms Alva’s case that although the defendant agreed to become a participant, at the time he agreed to become a participant, he did not know what would be involved. It is his case that it was only after the defendant had agreed -- Khalia had agreed to participate did the other person bring the two machetes concealed in a plastic sheath and a badminton racket bag into the car.
Ms Alva stresses that if it were not for the defendant’s confession and cooperation with the police, this plan would not have been discovered and the defendant would not have been charged with conspiracy. However, the defendant chose to tell the truth, while the others had been evading their responsibility. She has asked this court to take these circumstances into account and give the defendant a discount for this.
She, like Mr So, refers to the case of my learned brother, Zervos J as he then was, as to the proper and appropriate starting point in this case. She recognises that the defendant is a Form 8 holder at the time of the offence and enhancement should be applied for this factor. She asks me to temper justice with mercy.
In sentencing the defendant today none of the counsel referred me to cases which I referred them to, which was Chu Kwok Yui, CACC 389/2009; and CACC 307/2009 of Obiagwu Oluchukwu Christian; CACC 139/2008(139/2008), Singh Gursevak. I adjourned for Ms Alva and Mr So to read these cases and address me on these cases. Both Ms Alva and Mr So seek to distinguish these cases with the present case in that in this case particularly, there was no actual violence used.
It is clear the sentencing guidelines for armed robbery are found in the case of Mo Kwong Sang v R [1981] HKLR 610. The Court of Appeal then set down these guidelines. They are to be applied to armed robbery involving knives and other dangerous weapons, but not to firearms where a more severe sentence will normally be imposed.
As regards the starting base of imprisonment for an armed robbery involving knives is one of 5 years’ imprisonment. The -- in this case the nature and circumstances of the armed robbery and the key factors in determining the appropriate starting point are the following matters.
This was a well-planned and pre-meditated robbery targeting a sole female proprietress of a money exchange shop, which was well known to Chan. Chan, M and H had conjured up this robbery and Chan had provided to H and M all the relevant information, including the photograph of Guan. There were at least three conspirators in Chan’s charge and at least five in Khalia’s charge. Even if they were to overlap, it would have been at least six persons involved in this conspiracy to rob.
On the day that Khalia was found in the car, there were at least four of them there and the wanted person missing. Therefore, there were multiple members of this gang of robbers, each playing a significant and important role as stated by Khalia in his interview. They were given roles of holding the machetes; who was to take the money; and of driving the vehicle and changing the vehicle car plates.
The photographs of the machetes show that these are lethal weapons. Not only would they have killed, they would have seriously maimed Ms Guan had they been used. There are photos of them and although Miss Chan does not have them in court before me, I am informed the total size of the machete was 46 centimetres, of which the blade was about 30 centimetres. They were large enough to keep in a badminton racket bag. One could not think of more serious, lethal, dangerous maim-killing -- maim or killing weapons than those that I have seen frighteningly in the photographs. Not only were these -- there machetes, but there were also plastic strips and rolls of duct tape. These could have been used also during the robbery, clearly for purposes of either tying her up or keeping her quiet.
They all knew that they were going to rob the proprietress, or they were going to rob a money exchange shop. Clearly, a large amount of money was expected to have been stolen.
I brought to the attention of counsel the case of Chu Kwok Yui because as Yeung JA as he then was said at paragraph 20, “The Court of Appeal took the view that” -- sorry, I will just say in that case the robbery took place at a Hong Kong Jockey Club betting centre. And the Court of Appeal then said it took the view that the robberies were as serious as robberies of banks with the use of imitation firearms, which attracted a starting point of 12-15 years. This case, as I mentioned, was referred to in CACC 139/2018, Singh Gursevak and also the case of CACC 307/2009 of Obiagwu.
The conspirators here, that is including Chan and Khalia, were aiming, as the court said, at high stakes. They were aiming for large sums of money. I consider frankly these machetes to be far more serious weapons than imitation firearms. As I mentioned, they are lethal, severely maiming, or weapons used to kill.
It is extremely fortuitous that the police investigatory work was quick and efficient to stop these conspirators from carrying out their plan, otherwise one’s imagination of the consequences might have been catastrophic. It requires little imagination to appreciate what fear these robbers would have caused to Madam Guan, a lone female proprietress.
I fully accept that there is no violence in this case. That is, as I mentioned, because of the very fortuitous and good work carried out by the police in intercepting these robbers only at a very close distance near Madam Guan’s premises before any robberies took place.
As stated in Singh Gursevak at paragraph 48, although I accept that the court there was talking about enhancement on Form 8 holders, the court needs to protect those engaged in businesses similar to Guan’s. In this case, Singh Gursevak, was also a money exchange shop. These people who run money exchange shops are easy targets for people –
for robberies. Therefore, any sentence that should be passed should be a deterrent sentence such that people know that should they target these businesses, then they will receive heavy sentences.
As I mentioned, the robbery was well planned and initiated by Chan, M and H. They got involved South Asia gangs, including Khalia. I do consider this case to be a very serious robbery and, as I have already mentioned, one that was fortuitously stopped.
There is very little that can be advanced on behalf of both Chan and Khalia, except for Chan’s early plea of guilty, and of Khalia’s later plea of guilty.
For Chan, I accept that he should receive the customary one-third discount from the appropriate starting point. For Khalia, as is trite since the ruling in HKSAR v Ngo Van Nam, the range of discount to be afforded to a defendant when he intends to plead guilty after trial dates have been fixed, but before the first day of trial, lies between 25 per cent discount up to 20 per cent discount on the first date of his trial. In the circumstances of this case, I am prepared to give Khalia a 25 per cent discount.
In both defendants’ cases, I accept that that sentence should be given a further discount. The charges against them may have lacked sufficient evidence to charge them with this offence and they voluntarily confessed and admitted their roles in this offence despite the seemingly lack of evidence against them. In those circumstances, I am prepared to give each of them a further 3 per cent discount - sorry, did I say 3 - 2 per cent discount.
Given all the aggravating factors that I have mentioned, had you been convicted after trial, I would have taken a starting point of 10 years’ imprisonment.
For Khalia, you are a Form 8 holder and it is clear that for Form 8 holders, an enhancement should be made to your sentence, and I enhance your sentence by one year, making a starting point of 11 years’ imprisonment.
For Chan, you are afforded a 35.3 per cent discount and that means the total term of imprisonment you shall serve is one of 6 years and 6 months’ imprisonment.
For Khalia, I discount your sentence by 27 per cent and you shall serve a term of 8 years’ imprisonment.