COURT: The two defendants pleaded guilty to one count of attempted robbery with which they were jointly charged.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of the defendants and mitigation put forward on their behalf.
The facts of the case may be summarised as follows. The victim is a lady who lives with her five year old daughter and a Filipino domestic helper in a village house in Sai Kung. At about 6.45 pm on 22 November 2013, four hooded males appeared in the bushes near her village house. They eventually entered the house from the rear door at about 7.45 pm. Their action alerted a dog, which started to bark. The victim went to see what happened. When she saw the four men in the house, she screamed. One of them threatened the victim with a screwdriver he was carrying, and told her to keep quiet.
Hearing the noise, the domestic helper, Ma, who was bathing the victim’s daughter, came downstairs. One of the man pointed an iron rod at her. The victim shouted to her daughter. One of the man opened the door of the bathroom to enable her to see that her daughter was safe. When Ma was still threatened by one man with an iron rod, and the victim guarded by another man, the other two men ransacked a playroom outside the bathroom and took a notebook computer.
One of the men then told the victim to give him her watch and jewellery. The victim did not comply. The victim then followed one of the robbers into a guest room, there she knocked on the window to try to alert her neighbours. The men pushed her to fall onto a bed.
Then police officers, who had been conducting an anti-burglary operation in the area arrived, and the four men rushed downstairs. After some struggle with the officers, three men managed to escape through the main door. Another man who had been hiding in a washroom fled from the rear door. An iron rod, a hooded mask and a screwdriver were left in the house.
Police officers pursued the three men escaped from the main door. D1, who was the man who held the iron rod before, was subdued. D2 was another fleeing man. He was also apprehended. There was struggle between the officers and the two defendants. During the struggle, six police officers sustained tenderness and/or abrasions to the fingers, hands or knees. A police baton was broken. The two defendants also sustained some injuries.
On D1, a pair of gloves, a mobile phone and a rucksack containing water bottles, packet of biscuits, two lighters, a torch and a packet of mosquito repellent were found. A wristwatch, a hooded mask, a notebook computer with broken parts were found outside the house.
At the scene, D1 said under caution that he did not steal anything, and had decided to leave. At the subsequent interview, he said he has swum from Shenzhen to Hong Kong with D2 and two other persons. Their leader is called “Ah Ming”. They entered the village house upon instructions of “Ah Gor”, after watching it for an hour. He admitted to have carried an iron rod in the house, and ransacked inside it.
At the scene, D2 denied having committed the robbery. In a subsequent interview, D2 admitted that he did not have any proof of identity. He walked from Shenzhen to Hong Kong with other persons. He was instructed to wait at a nearby hillside, and he did not know what the other people were doing inside the house. He had no knowledge where the tools used in the robbery came from.
Both defendants do not have a criminal conviction record in Hong Kong.
D1 is a PRC citizen, 36 years of age. I was told that he had education in the mainland up to Primary 3 level. He was a farmer living with his wife and a five years old son. His wife has recently given birth to a baby.
In mitigation, learned defence counsel Mr Iu told the court that as a farmer, D1 faced great financial hardship. He went to Shenzhen trying to look for a job, but was unable to do so. It was under such circumstances he joined the group and committed the offence. He stressed that D1 is now full of remorse. A letter written by D1 was produced.
Mr Iu drew the attention of the court to the case of HKSAR v Wang Wei CACC 446/2009, and submitted that the present case is a less serious case, and a lower starting point should be considered.
D2 is also a PRC citizen. I was told that he is 28 years old. He has received secondary school education in the mainland. He was a barber. He lived with his parents, his three years old son, and his younger brother who is also a barber. His wife left the family in 2013.
In mitigation, Mr Yuen told the court that D2’s family was living in a mountain village, and life was difficult. In order to provide medical treatment to his father, who is suffering from heart and lung problems, D2 incurred a heavy debt of about 100,000 renminbi. With a desire to earn quick money to repay the debt, D2 committed this offence. He is now also full of remorse.
Mr Yuen stressed that D2 was not the person who held the iron rod, he was also not the person who was holding the screwdriver, nor the one who pushed the victim onto the bed. He also asked the court to take into account the fact that no victim had been ill-treated or injured, and the computer was recovered, though some parts was damaged. A letter written by D2 and another by his father was produced. Mr Yuen drew the court’s attention the case of HKSAR v Chau Ping CACC 2/2013.
This was a serious case. It involved the invasion of a private domestic premises. It was committed by a group of four persons, armed and equipped. There was a substantial degree of pre-planning, though the house in question was not necessarily the target. There was a possibility that the group was making surveillance in the area and picked the target. The target they picked was one which was obvious to be having people present inside. The two defendants came from the mainland not from lawful channel. The reasonable inference is that they came here to commit offence.
The crime they eventually committed was a very serious one. Some force was used on the victims. It was fortunate that no physical harm was caused to any of them, and this I accept may well be a result of constraint of the men to use force. They did not injure the little girl, nor used her to put extra pressure on the two ladies. The fear caused to the victims however must have been severe. The incident lasted some time. It was not a short episode. It stopped only when police officers arrived.
Learned prosecuting counsel Mr Turnbull brought to my attention the following cases, Mo Kwong Sang v R [1981] HKLR 610, AG v Chan Fan Keung [1998] HKLR 570, HKSAR v Ting Chiu [2003] 3 HKLRD 378, and HKSAR v Chui Chi Hung [2002] 2 HKLRD 409.
Amongst the cases brought to the court’s attention, Mo Kwong Sang and Chau Ping provide broad guidelines of consideration of sentence in this type of case. Mr Iu submitted that the iron rod and the screwdrivers used are not something similar to a knife. I note the dissimilarity, but am of the view that both items can be used to cause serious injury. The submission that the rod was only provided to D1 carries little weight, as the important point is that he armed himself with it.
The offence is one of attempted robbery. Section 109J(1)(b) of the Crimes Ordinance provides that:
“A person who commits an offence of attempting to commit an indictable offence other than murder is liable to any penalty to which he would have been liable on conviction of that offence.”
I note that in the case of R v Robson, a case decided on 6 May 1974, cited in paragraph 36, 102 of Archbold Hong Kong 2015, Megaw LJ observed that it would be:
“At least unusual that an attempt should be visited with punishment to the maximum extent that the law permits in respect of a completed offence.”
In the present case, the robbers had entered the premises, put the victims under control, and had ransacked part of the premises and a robber had indeed taken a notebook computer into his possession. They fled only because of the intervention of the police. In my judgment, a starting point higher than what I am to adopt will be required if the crime had proceeded further and resulted in more property loss and harm to the victims.
Having considered the whole circumstances, and have had regard to the relevant authorities, in my judgment, only a starting point of 8 years is sufficient to reflect the nature and seriousness of the present case. I see no difference in the culpability between the two defendants. It was a case of joint enterprise. Each member of the group played different role and there is no suggestion that there was any conduct which really went beyond the scope of the joint enterprise. I therefore adopt the same starting point for both of the two defendants.
Both defendants pleaded guilty and each of them is entitled to a one-third discount. Having considered the whole circumstances, including what have been said on their behalf by learned defence counsel, I am of the view that this is the extent of the discount each defendant is entitled to.
So defendants, please stand up. For these reasons, each of you is sentenced to 5 years and 4 months’ imprisonment.