HKSAR v. LEONG HOW SENG

HCCC 180/2023

[2025] HKCFI 1047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 180 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges on the first day of trial.

Count 1: Attempted Robbery, contrary to s.10(1)  and (2)  of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200

2.  Particulars of the charge are that the defendant on 1^st July 2020, at Mannings, G/f, Golden Plaza, Nos.754-747 Nathan Road, Kowloon (“the Shop”), attempted to rob Mok Chung-man.

Count 2: Robbery, contrary to s.10(1)  and (2)  of the Theft Ordinance, Cap.210

3.  Particulars are that he on 14^th April 2022, at China Construction Bank (Asia), G/f, no.556 Nathan Road, Yau Ma Tei, Kowloon (“the Bank”), robbed Lui Wai-ching of cash $14,000.

SUMMARY OF FACTS

Count 1

4.  Mr. Mok was a staff member of the Shop and was working behind the cashier counter at around 7:57pm on 1^st July 2020 when the defendant went up to him and threw onto the counter a piece of paper with the words “Robbery! Surrender the money if you want to live, hurry, or burn you to death with gasoline” in Chinese[1] written on it.

5.  When Mr. Mok did not appear to be scared, the defendant took out a lighter and a bottle of clear liquid.  Mr. Mok, however, maintained his composure, and even scolded the defendant, telling him to leave.  The defendant attempted to approach the counter and Mr. Mok fended him off.  The defendant knew then that he was defeated and escaped, leaving the piece of paper behind.  

6.  The attempted robbery was caught on CCTV, but the police were not able to apprehend the robber.  No fingerprints were lifted from the paper, and it had since been disposed of since the file was closed.  

Count 2

7.  Ms. Lui was working as a bank teller at China Construction Bank at around 3:38pm on 14^th April 2022, when the defendant who was pretending to be a customer lining up went up to her and handed over a piece of paper with the words “Robbery! We have gun(s), quickly put money in the bag, do not cooperate, we shoot” in Chinese[2].

8.  Ms. Lui immediately triggered a discreet alarm to notify the manager.  Meanwhile, the defendant took out a pistol-like object, pointed it at Ms. Lui, handed over a bag and told her to put money inside.

9.  Ms. Lui felt threatened but she remained calm and began to count out some money, trying to buy some time for her colleagues to notify the police and to stall the defendant’s escape.  The defendant, however, told her to “stop counting or you will die” while pointing the pistol-like object at her.

10.  Ms. Lui had to comply and placed $14,000 into the bag.  The defendant fled with the money and the pistol-like object, leaving the note behind.  One of the bank staff bravely followed the defendant and saw him got onto a bus nearby.

11.  Later on, with the use of CCTV footages from different shops, police officers were able to trace the defendant’s escape route.  The defendant had gotten off the bus at the next stop, walked for 30 minutes and into Langham Place, took the MTR to Kam Sheung Road station.  The defendant would later on tell the police that he had then taken a taxi home.

12.  Police investigation in and around the Kam Sheung Road station area eventually brought them to where the defendant lived and he was arrested the same night at his residence.  A toy gun, which was the pistol-like object he used in the robbery, was found together with some of the stolen money.  The clothes he wore were also found and seized.  

13.  Subsequent investigation revealed that the defendant also committed the attempted robbery in count 1 and he was arrested accordingly.

14.  The defendant claimed to be a Singaporean passport holder, but his passport had expired on 12^th July 2009.  The defendant was further arrested for overstaying.  He claimed under caution that he overstayed because he was evading his debtors back in Singapore, and he robbed the bank because he was in debt.  The bottle of clear liquid he used to threaten the Manning staff with was in fact water.  He had disposed of the bottle and returned the lighter he used in the attempted robbery to his friend.  

PREVIOUS CONVICTIONS

15.  The defendant has just one court appearance dating back to November 1981, when he was sentenced to a total of 3 years' imprisonment for 4 charges of Obtaining property on a forged instrument, and 1 charge of obtaining property by deception.  The convictions were however overturned on appeal.  

BACKGROUND AND MITIGATION

16.  The defendant was born in March 1949 and is about to turn 76.  He was married but he came to Hong Kong in 2007 and had since lost contact with his wife.  They do not have any children.  The defendant claimed he never worked here.  He began living together with his partner, Ms. Tillotson, in 2011, who has since been supporting him financially.  

17.  The defendant has a 73 year old younger sister who lives in the U.S., and an older brother who is unemployed and lives in Singapore.

18.  The defendant says he committed the offences due to financial hardship.  Their rental payments were in 2 months’ arrears at the time of the Bank robbery, and he did use part of the stolen money to make the payment.

19.  Mr. Kwan submits that but for the defendant’s confession, the prosecution would not have had sufficient evidence to convict him on either robberies, given that the defendant’s face was covered by the cap, mask and glasses he was wearing when he committed the crimes.

20.  The defendant had been cooperative with the police, giving detailed information of his commission of the Bank robbery, saving time and effort on the part of the prosecution.

21.  The defendant lists in his letter 12 “mitigating merits”.  In gist, prior to his arrest, he needed to make porridge for Ms. Tillotson every day because she has lost her teeth.  Neither of them has any family members in Hong Kong to look after them, and the defendant had had no visitors while being remanded.  Ms. Tillotson was the only breadwinner, but as a result of the social unrests in 2018 and then the pandemic in 2019, she was unable to work and life became extremely difficult.  They were threatened with eviction unless the outstanding $12,000 in rental was paid.

22.  On the day of the Bank robbery, the landlord had given them final notice for payment of rental, threatening to lock the flat.  Since Ms. Tillotson was unable to walk, the defendant feared that she might be locked inside.

23.  The defendant also talked about how he was cheated out of $500,000 by an acquaintance, contributing to his dire financial situation.

24.  The defendant’s health is increasingly poor, with a heart condition and diabetes.  He was advised to undergo urgent hernia operation as well.  He claims that he had not benefitted from his crimes.

25.  Ms. Tillotson wrote in mitigation, telling the court how the defendant has always been a caring, peace loving and trustworthy person in the 13 years they have been together.  She recalled how at around the time of the Bank robbery the defendant was depressed at not being able to provide for her.  She believes it was out of desperation that he had chosen a wrong way to solve his problems.  She sees how the defendant has aged considerably while in custody and how his health has deteriorated, and is sure that the defendant will never re-offend, and seeks leniency from the court.  

SENTENCING CONSIDERATIONS

26.  The maximum sentence for robbery and attempted robbery is life imprisonment.

Count 2

27.  In the case of R v Yu Tai-wing CACC 454/1994, the applicant was convicted after trial of robbery and possession of an imitation firearm at the time of committing the robbery, and was sentenced to concurrent terms of 10 and 5 years’ imprisonment.  The line of cases that the court had considered this case had confirmed that, for a single charge of robbery “where an opportunist robber embarks upon a robbery alone with an imitation firearm in a public place and inflicts no injury on his victim”, the appropriate starting point is that of 10 years’ imprisonment.

28.  There the court also found that,

“...in the case of bank robberies, jewellery shop and goldsmith shop robberies, security van or payroll robberies and such the like, no distinction should be made between cases where genuine firearms are used but not discharged and those in which imitation firearms are used.”[3]

29.  In the case of Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84, CAAR9/2008 (date of judgment 20 October 2009, date of handing down Reasons for Judgment 3 November 2009), the Respondent snatched the knapsack of a woman after pointing a pistol-like object at her, fled, but was intercepted and subdued by police officers.  The pistol turned out to be a lighter bought at Temple Street.  

30.  The Respondent was just over 30, had 12 previous convictions, most of them related to dangerous drugs or dishonesty, but there was one for robbery.  He was from a broken family, did not do well in school due to a neck injury from a traffic accident, and he committed the offence because he was having difficulties supporting his wife, a drug addict, and their 4 year old daughter.  He was also drunk and on drugs at the time of the offence.

31.  The Court of Appeal recognized that robbery with the use of firearms is particularly hideous because they cause much fear to the victim, and because such use will increase the chance of use of weapons by law enforcement officers, thus exposing the public to serious risk of death and personal injury.  The fact that it was an imitation firearm being used made little difference while the robbery was happening since neither the victim nor the officers would know that it was an imitation firearm.  

32.  The Court confirmed that they have consistently adopted a starting point of 10 years for robbery involving use of imitation firearms, and held that they had, in Yu Tai-wing (supra), approved a 10-year starting point for a single charge of robbery “where an opportunist robber embarks upon a robbery alone with an imitation firearm in a public place and inflicts no injury on his victim.”

33.  In HKSAR v Pau Lai Sing [2010] 3 HKLRD 233 (Date of Judgment:14 April 2010, date of handing down Reasons for Judgment: 19 April 2010), judgment of which was handed down about 5 months after the said Lee Chun Ho Jeef case, the target of the robbery was a jewellery shop.  The Court of Appeal considered a line of cases and judged that in bank robberies and similar cases where imitation firearms were used, the normal starting point after trial is 12 to 15 years’ imprisonment.  The Court recognized that such a high starting point is necessary for the important aggravating feature that, with the use of imitation firearm, law enforcement officers might have to resort to using their own weapons, thus exposing the public to grave danger.  

34.  In the Court of First Instance case of HKSAR v Tsang Kin-nam, HCCC 147/2016, the facts are quite similar to the present case.  There the 60-year old defendant presented a “robbery with gun” note to the bank teller while inserting a gun-like object partially wrapped in a towel through the counter and pointed it at her, causing her to be scared.  The defendant kept shouting at her, asking her to bring out all the money.  The teller was, however, in shock and could not react.  The defendant then fled.

35.  The learned trial judge took into consideration all the circumstances of the case and the relevant sentencing cases, and adopted a starting point of 12 years’ imprisonment.

36.  Turning to the present case, I find that the defendant’s Bank robbery was simplistic in nature and involved only himself.  He did, however, manage to get away with $14,000, most of which he had spent.

37.  The aggravating features are the fact that it was a bank that was robbed; that an imitation firearm was used; and that it was pointed at the bank teller to threaten her.  These features have been taken into account and incorporated into the 12 to 15 years starting points for similar robberies.  

38.  Given the similarity of the circumstances of the robbery when compared to Tsang Kin-nam, and bearing in mind the normal starting points, I find that an appropriate starting point would be 12 years’ imprisonment.

39.  As for mitigating features, I find that given the seriousness of the offence, the defendant’s personal circumstances count for very little in terms of mitigation. I do note that he is now aged 76 but in this day and age and with Hong Kong’s comprehensive and competent public health care system, it is still likely that he will be able to finish serving his sentence and return to the side of his family and friends.

40.  Moreover, I find that if a discount is given solely for his age, it might be perceived as an encouragement for those of slightly advanced age to count on the court to be lenient even when serious offences have been committed, thus lessening the effect of deterrence that the sentence is meant to achieve.  

Count 1

41.  In relation to the attempted Shop robbery in count 1, I find that the defendant’s holding a bottle of water and a lighter while saying words to cause the victim to perceive that the bottle was filled with some kind of inflammable liquid is akin to the brandishing of an imitation firearm.  The intention on the defendant’s part is the same, which is to exploit the fear of violence induced by his words and action in the victim, forcing him to comply with the defendant’s demand for money.  

42.  Unlike a knife, which requires contact with the person to cause harm, inflammable liquid can be thrown at a person from a distance and once lit, there is no control over how the fire is going to spread, possibly harming innocent bystanders who are not targets of the robbery.  Therefore, unless the staff of the Shop knew it was water in the bottle that the defendant was holding, which he did not, despite his brave reaction towards the defendant, the staff must have felt threatened and feared for his own safety.  

43.  In the case of Secretary for Justice v Ma Ping-wah, CAAR 1/2000, the Court of Appeal quoted the following passage of what was said in the New South Wales case of R v Henry, Paul and Others (1999)  106 A Crim R 149 under the heading of “Victim impact and need for guidelines”:

“...Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment.”

44.  Mr. Kwan refers to the case of HKSAR v Kwok Cheuk Man, CACC 7/2005 where the applicant pleaded guilty to one count of robbery and one count of resisting a police officer, and was sentenced to 5 years 4 months and 2 months’ concurrent sentences.

45.  The facts there were that the applicant at 3am on 22^nd July 2002 entered a convenience store in Central, wearing a baseball cap, surgical mask and held in his hands a lighter and an object resembling a petrol bomb.  He walked up to the cashier and declared robbery.  Under threat, the cashier put $182 of notes and coins into the backpack of the applicant, who then fled in a taxi.  Police officers managed to stop the taxi, whereupon the applicant opened the door and tried to flee but was apprehended.  He resisted and there was a struggle, but was subdued in the end.  A police officer suffered minor injuries as a result.  The petrol bomb turned out to be merely a beer bottle with some kind of water soluble liquid.

46.  The Court rejected the applicant’s submission that a robbery using a fake petrol bomb did not amount to ‘armed’ robbery.  They find that, just like a firearm or a knife, a fake bomb and a lighter would cause a victim great panic, which the applicant expected and intended.  Since only the applicant knew that it was not a real petrol bomb, a security officer or law enforcement officer might find it necessary to attack the applicant in order to protect others, thus creating a risk of innocent people being harmed in the process.  

47.  The Court found that use of a petrol bomb in a robbery in a public place is more serious than one where a knife is used, and that a starting point of 8 years is definitely not manifestly excessive, although it cannot be said to be a light sentence.  

48.  The Court stressed that shops with long opening hours such as convenience stores, petrol stations are easy targets for robbers and need to be protected, and such robberies need to be deterred.  

49.  The Court took into consideration that the applicant was 38 at the time of the offence and had a previously clear record, that he committed the offence out of personal financial difficulties which caused him huge stress and hardship, that the offence took place in the middle of the night when the streets were quiet, and that the weapon the applicant used would not have caused anyone any injuries, and made an exception to impose a merciful sentence, reducing the robbery sentence to 4 years 6 months’ imprisonment after plea, which was equivalent to a starting point of 6 years 9 months.

50.  In the present case, there is no evidence from the prosecution to prove what liquid was in the bottle that the defendant held in the attempted shop robbery.  There is, however, evidence from the defendant in the form of his cautioned statement that it was water.  On the basis that what the defendant said may be true, I will sentence him as if it was in fact water that he held.  

51.  Just as there is a difference between sentencing for genuine versus imitation firearm in cases other than bank and similar robberies, I find that there should also be a difference between sentencing a case where the offender used actual gasoline, and one where he used water pretending to be gasoline as the fear inducing agent.  

52.  Taking into consideration all the circumstances, I will adopt a starting point of 5 years 6 months’ imprisonment for the attempted Shop robbery.  

DISCOUNT FOR THE DEFENDANT’S PLEAS

53.  According to the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, after trial dates have been fixed, but before the first day of trial, the appropriate discount for an indication of plea of guilty lies between 25% and 20% from the starting point.

54.  In deciding which percentage to apply, the judge will have regard to the time at which the indication was given and all other relevant circumstances.

55.  Here the defendant only indicated to the prosecution his intended pleas about one week before the first day of trial.  By that time most of the preparation for trial had been completed.  

56.  In the case management hearing on 25 October 2024, counsel for the defendant informed the court that the voluntariness of the cautioned statement will be challenged, as well as the search of the home of the defendant.  Counsel said their line of defence is wrong identification, that the defendant was with his wife somewhere else at the time of both offences.  The defence undertook to issue the necessary alibi notice.  As a result of the challenges to be mounted by the defence, the parties agreed to extend the trial for 5 more working days.

57.  At the pre-trial review on 10^th February 2025, defence counsel informed the court that the alibi witness was residing in Western Australia but will be able to return to Hong Kong to be interviewed by the police.  The interview was ordered to take place at 11am on 19^th February 2025.

58.  By a letter dated 24 February 2025, being 7 working days from the commencement of trial, the defence informed the court of the defendant’s intention to plead guilty to the charges.  

59.  Given the lateness of the defendant’s indication of pleas, the manner that he had led the prosecution and the court to believe that the matter will go to trial and to have the trial dates extended, I find that the defendant should only be granted a discount of 20% for his pleas.

60.  The discounted sentences after plea, each with a slightly more than 20% discount after rounding up the figures, are 4 years 4 months for the attempted Shop robbery, and 9 years 7 months for the Bank robbery.

TOTALITY

61.  The offences took place almost 2 years apart, with different targets and victims and different imitation weapons.  The defendant committed the Bank robbery while still at large for the attempted Shop robbery.  The defendant should not be able to complain if the sentences were ordered to run consecutively.  Yet, a wholly consecutive sentence would be a crushing sentence and does not reflect properly the defendant’s overall culpability.

62.  Taking a step back, and looking at the circumstances surrounding his commission of the offences, I find that there is room for leniency.  

63.  I will order 1 year 8 months of the sentence for the attempted Shop robbery to be served consecutively to the sentence for the Bank robbery, the balance to be served concurrently, resulting in a total sentence after plea of 11 years 3 months’ imprisonment for the 2 charges.

64.  I will deduct 3 months from this sentence for the defendant’s initial cooperation with the police when he confessed to both crimes fully, allowing the prosecution to be brought relatively swiftly.

65.  The defendant is, therefore, sentenced to a total of 11 years’ imprisonment for the 2 charges.