COURT: The defendant, Cheung Chung-man, a 24-year-old young man, has pleaded guilty to a count of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.
The particulars of offence are that on 11 October 2013 at Shop B, Ground Floor, 38 to 40 Granville Road, Tsim Sha Tsui, Kowloon, in Hong Kong, the defendant attempted to rob Law Chin-hang.
The defendant has admitted the summary of facts prepared by the prosecution. I will read it out first.
At all material times, the defendant (“D”) was employed as a part time salesperson at Studio A Technology Limited, which was situated at Shop B, Ground Floor, 38 to 40 Granville Road, Tsim Sha Tsui, Kowloon. The defendant had been working there since March 2013.
On 10 October 2013, D made a request to his supervisor to change his work shift the following day so that he did not have to go back to work until 6.30 pm. He claimed that he had to go back to his university to pick up his diploma. His request was approved.
At about 11.20 am on 11 October 2013, Law Chin-hang, that is PW1, aged 22, was the first person returning to the store. After getting into the shop, he left the roller gate ajar so that other colleagues could enter the shop after him. Subsequently, three other colleagues, Chan Wai-ka, PW2, aged 22, Yeung Ka-ki, PW3, aged 25, and Chan Ching-man, PW4, aged 22, returned and they all started preparing the store for business.
At about 11.30 am, D suddenly entered the shop alone through the roller gate that was left ajar. To disguise his identity, D was wearing a wig, a facemask and a pair of sunglasses. He was also carrying a handbag. He approached PWs 1 to 3. D pointed a pistol-like object at them and ordered them to walk into the storeroom. PW4 was inside her office at that time. She was also located by D and was indicated to go into the storeroom.
At this point of time, PW2 started noticing that the robber looked like D. PW2 started giggling. D shouted at him and then ordered all four of them to turn around. D then threw some plastic straps onto the floor. He demanded PW2 to use the plastic straps to tie up the hands of his colleagues. PW2 did so and D eventually tied up PW2. At this juncture, Tong Nga-yan, PW5, aged 24, also returned to work and found out what was going on. She also was immediately tied up by D.
D asked the group who the person in charge was. PW1 told D that he was. D then ordered PW1 to open the safe which was inside the storeroom. With his hands tied up, PW1 attempted to enter the pass code. He was unable to enter the pass code correctly. After two failed attempts, D approached PW1, pointing the pistol-like object at the back of his head, cocking the hammer, and said to PW1:
“I give you 10 more seconds. If you still can’t open it, I will open for you.”
That means, according to the prosecution, opening the safe for PW1.
PW1 was extremely terrified at this point. He attempted to enter the correct pass code one more time. He failed. This triggered the sounding of the alarm, D took his handbag and immediately rushed out of the storeroom. At the same time PW1 managed to untie himself and chased after D. PW1 pulled D to the floor and struggled with him. PWs 2 to 5 at this point also managed to free themselves and came to assist PW1.
During the struggle, D’s wig, facemask and sunglasses dropped. All PWs then discovered that the robber was in fact their colleague. D was restrained until the arrival of the police. During the struggle, PW1 suffered minor injuries to his left palm and his right kneecap.
D was arrested subsequently. Under caution he stated:
“I had to repay a debt of $28,000 today, but I have no intention to rob. The gun, the facemask, the wig and those bags are not mine. An unknown male asked me to put on the wig and facemask and use the gun to get valuables from the shop.”
The pistol-like object was recovered from D’s handbag. Forensic firearms examination was conducted on this object, but it was later found to be a spring-powered air gun capable of discharging 6 mm calibre plastic balls with muzzle energy of les than 2 joules. The air gun, therefore, did not fall within the legal definition of “arms” under the Firearms and Ammunition Ordinance, Cap 238.
Further, a pair of gloves was found inside D’s handbag. A cutter blade was also found inside D’s trousers’ pocket.
In the subsequently held video recorded interview, under caution, D admitted to attempting to rob. He claimed that he was unable to pay back his credit card debt of $28,000. He decided to rob the shop as his bank kept calling him, asking him to repay his debt. As he worked in the store, he knew that cash was kept inside the safe. He bought the wig from the night market in Mongkok and the air gun from a stationery shop in Tin Shui Wai a few days before the offence date. He put on the wig, facemask and sunglasses inside the toilet at Tin Shui Wai MTR station and went to Tsim Sha Tsui by rail. After entering the shop, he pointed the air gun at his colleagues and had them tied up with plastic straps.
He admitted to ordering PW1 to open the safe. He also admitted that he threatened PW1 by cocking the hammer of the air gun when PW1 failed twice to enter the correct pass code. He fled when he heard the alarm sounding because he was frightened. He had not used the cutter blade found on him during the offence. He was remorseful for his foolish act.
CCTVs installed inside the shop captured the whole course of the offence.
The characterisation of this case, according to the facts admitted, is robbery carried out with a pistol-like object, an imitation firearm. Of course, it’s a failed robbery.
Relevant sentencing authorities can be found referred to in Cross and Cheung, Sentencing in Hong Kong, 6th Edition, pages 723 to 724.
In R v Yiu Tai Wing [1995] 1 HKC 837 the Court of Appeal gave sentencing guidelines for robbery, drawing a distinction between the use of genuine and imitation firearms. For robbery with an imitation firearm in a public place, the appropriate starting point is 10 years (see page 840 E to G).
On the other hand, in HKSAR v On Ling [2005] 1 HKC 227, a case of a robbery where the applicant used a dummy weapon, namely a roll of newspapers, pointing at a man’s stomach when declaring robbery at a bus station in Tai Po, and the 45‑year-old victim fell to the ground out of fright, dropping his bag, which was taken by a co-defendant, the Court of Appeal held that the guidelines for armed robbery were not appropriate and treated the circumstances as at the top of the tariff for unarmed robberies whose victims are frightened and considered a 4 years’ imprisonment starting point appropriate, despite the authority of Mo Kwong Sang v R [1981] HKLR 610, which held that a robbery committed with the display of a knife, without other aggravating features, attracts a starting point of 5 years’ imprisonment. The rationale can be found in the judgment at page 23F:
“8. The issue is whether this case should be regarded as a robbery where a weapon was displayed, although it turned out to be no more than a prop.
9. It is, of course, true that the victim had been frightened by the prop, but the fact remains that the roll of newspapers was not a weapon and did not conceal one. The victim was never at risk of any physical harm from its use. In our view, if the same sentence is given, whether a knife is displayed or where a roll of newspapers is displayed, albeit as a dummy weapon, there would be little disincentive to the actual use of a knife.”
Counsel for the prosecution, Ms Wong, refers me to the Secretary for Justice v Lee Chun Ho, Jeef [2009] 6 HKC 471 where the respondent was charged with robbery and the using of an imitation firearm with intent to resist or prevent lawful arrest. The Court of Appeal held that the proper starting point for the robbery should have been 10 years’ imprisonment and for the use of imitation firearm should have been 6 years’ imprisonment. The court explained:
“25. The Court of Appeal has consistently adopted a starting point of 10 years for robbery involving the use of imitation firearms.
26. In AG v Ng Hung Kei (unreported CAAR 12/1987), the defendant pleaded guilty to two shop robberies using an imitation pistol on each occasion. It was held that a total sentence of 10 years’ imprisonment would have been appropriate, which was reduced to 8 years, as it was a review.”
27. In HKSAR v Huang Jianfeng (unreported CACC 145/2006), the defendant used an imitation firearm to commit two robberies. In the second robbery, threats to use an imitation firearm were uttered. The Court of Appeal considered a starting point of 10 years’ imprisonment to be appropriate for each of the two offences of robbery.
28. In HKSAR v Mak Chi Ho [2008] HKCU 1042 (unreported CACC 290/2007), the Court of Appeal approved a total sentence of 10 years’ imprisonment, on pleas of guilty for one robbery and one attempted robbery of convenience stores with the use of imitation firearms.”
I omit paragraphs 29 and 30.
“31. We simply want to point out that 8 years and 6 months was adopted in Yu Tai Wing (supra) because, inter alia, the defendant (a serving police officer) ‘had completed 20 years of unblemished service and had plainly acted completely out of character in doing what he did.’ The respondent, on the other hand, had many previous convictions.
32. The Court of Appeal in Yu Tai Wing (supra) actually 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 on injury on his victim.’
It is to be noted that in Lee Chun Ho, Jeef, the case of On Ling was not referred to. The reason seems that an imitation firearm was distinguished from a prop used in On Ling, although the prop could be misunderstood or misconceived by victims as containing a sharp knife or even a firearm. Indeed, the 45-year-old male victim in On Ling was so frightened by the pointing of the roll of newspapers at his stomach that he fell down.
It might be argued that the rationale for adopting a lower starting point in On Ling seems to apply to the present case. If the facts of this case are transposed into and substituted for the contents of paragraph 9 of On Ling’s judgment which I have just cited, to demonstrate the applicability, it would read as follows:
“It is, of course, true that the victims had been frightened by the prop, but the fact remains that the pistol-like object was not a weapon and did not conceal one. The victims were never at risk of any physical harm from its use. In our view, if the same sentence is given whether a knife is displayed or where a pistol-like object is displayed, albeit as a dummy weapon, there would be little disincentive to the actual use of a knife.”
The distinction between On Ling and the other cases cited seems to depend on whether the weapon or supposed weapon used in the robbery was a prop or a dummy weapon, as in On Ling, or an imitation firearm as in the other authorities. I consider that the crux is whether the dummy weapon is a dummy knife or a dummy firearm.
A dummy knife was, and to be properly treated as, not as serious as a true knife, as pointed out in On Ling, but a dummy firearm would have much more serious consequences that can normally be brought about by a true firearm. The present case should therefore be treated as under the umbrella or the authorities where normally a 10-year imprisonment starting point would be applicable.
I now turn to the facts of the present case.
The most serious aggravating feature is the pointing of the object at the back of the head of PW1, the victim, when the defendant ordered him to open the safe, since PW1 had failed twice to key in the correct pass code. The threat was increased by or made more realistic with the cocking of the hammer of the air pistol. This must have put PW1 into fearing that he might be shot and die, which can be said to be one’s most terrifying experience in life. That fear would seldom result from the use of a knife, dummy or actual.
PW1 was told to try to key in the pass code again. This third attempt also failed, which triggered the alarm that caused the defendant to flee. PW1 gave chase and was able to catch and subdue the defendant, suffering minor injuries to his left palm and right kneecap in the process of the struggle.
Another aggravating matter is that the defendant was trying to rob the shop in which he was working, having knowledge of the working of the shop and where the money was kept. There was also a certain amount of preparation, such as buying the air pistol and a wig for his disguise.
The mitigating factors in this case are that the attempted robbery took place entirely within the shop premises of Studio Technology Limited when the shop was not yet open to the public. Only five members of the staff, as opposed to members of the public, were present and affected. As counsel for the defendant, Mr Wong, submits, no risk to life or injury was possible of the public and LEA officers, law enforcement agency officers. No violence was in fact used, despite the defendant holding the pistol-like object when giving instructions to the staff to move to particular positions and to be tied up with the plastic straps.
Moreover, the defendant had a cutter blade in his pocket, he did not resort to use it. According to his VRI, the video recorded interview, he explained that it was planned to use the cutter blade to cut the adhesive tapes or the plastic straps used to wrap the colleagues’ arms after the robbery was completed. There is no evidence that he ever tried or intended to use the cutter blade for any other purposes. The fact was, it was never produced or displayed and, apparently, for avoiding personal injuries to his fellow colleagues which might be inflicted accidentally by a sharp blade, his intentions seemed to be come what may he would not harm his colleagues.
Since the robbery failed, nothing was lost and no proceeds of crime will need to be taken into account to assess the sentence.
Mr Wong, counsel for the defendant, has provided the court with a box file of materials in aid of mitigation.
First and foremost, I must say with surprise is that PW1, the victim of the offence, has written a letter asking leniency for the defendant. Although PW1 does not expressly say anything about the terrifying experience that he underwent, he asks the court to deal with the defendant leniently and to give him a chance to turn a new leaf, describing the defendant as a hard working and positive young man, dedicated and polite in serving customers, who would certainly contribute to society, and describing the incident as a momentary lapse and stupidity.
Three of the other four colleagues who were victims to the acts of the defendant as described in the summary of facts, who would have been PW2, PW4 and PW5, but for the plea of guilty of the defendant, have all written letters to seek leniency for the defendant.
Apart from PW1’s description of the character of the defendant as a colleague, one or the other of these would-be PWs, depicted the defendant as helpful, unassuming and simple, making people happy and always prepared to help others, and that the incident was childish and laughable. They, in unison, ask the court to give the defendant a chance. It seems to me that they, as victims in the attempted robbery, have all forgiven what the defendant did to them.
Mr Wong has told me that PW3 has not written because she was a newcomer in the company and did not know the defendant long enough to be able to say anything meaningful about him.
Moreover, there are letters from other colleagues who were not involved in the incident. They described the defendant as an extremely helpful, humorous, kind, humble and happy person. They were greatly distressed by learning of the incident. Apart from seeking leniency for him from the court, they would like to let him know that they have not abandoned him. One letter stresses that the defendant is not a bad person or else none of his former colleagues would have written to urge the court to deal with him lightly.
In the eyes of the colleagues, despite his wrong deed, the defendant is not a bad person, but one who has gone astray momentarily. The defendant will think carefully and reform himself, like when children have done something wrong, they are always given a chance to reform and although the defendant has done wrong this time, he hopefully will not be abandoned by or eliminated from society. They entreat the court to give him a chance to turn a new leaf.
The defendant’s teachers in the City University of Hong Kong, eight of them, have written in to describe how shocked and saddened they were when learning his involvement in this grave crime. They believed that it was a lapse of judgment and a one-time offence committed by this friendly and helpful person who had served as the president of the Information Systems Department’s student society and organised many meaningful events.
A social worker of the Hong Kong Federation of Youth Clubs has also written to ask the court to pass a lenient sentence on the defendant. She was surprised and saddened by the event which she learned with disbelief. She described the defendant as a person who persevered with hard work after failures in academic examinations and was successful in gaining entry into a university. The defendant also participated in voluntary work in helping the disadvantaged or less advantaged and was praised by many of those whom he had helped as a true and loving friend. Two certificates of appreciation, both dated 30 January 2010, for two facets of the defendant’s voluntary community work, and a certificate dated November 2010 for his participation in a charity walkathon, have been issued by this federation.
Another lot of letters are written by his family members, including his parents and siblings. His girlfriend and her mother also wrote.
What is most touching is, of course, the letter from the parents. Apparently, not too educated, the father writes to say that the defendant is a filial son, a hardworking student, a person willing to serve his fellow university colleagues and to help others less advantaged in society. The father blames himself for not knowing timely the financial problems, with pressure exerted by lenders, faced by the defendant who did not divulge them to the parents so as not to worry or trouble them, or the parents would certainly have thought of a way to assist so that this unfortunate and foolish event would never have occurred.
The parents begged the court to exercise its discretion to pass a lenient sentence, for the defendant is still young and, if given a chance, would contribute to society and look after the parents in their old age, who have no occupation and are suffering from the usual illnesses of the elderly.
The defendant wrote to them expressing his remorse and sorrow. He explained that it was undergoing two years of increasing amount of credit card loans that resulted in the institutions pressurising him which compelled him to resort to what he did foolishly because he did not want to trouble or worry his family. He apologised profusely and asked the parents to take good care of themselves so that he would be able to return in years’ time to look after them. He repented what he had done at the spur of the moment without consulting with family members about his financial difficulties. He was also apologetic for the parents paying him visits in jail and asked them not to spend any money in buying things for him. Most importantly, he wished his parents not to worry about him and look after themselves well.
The defendant also wrote to his sister to ask her to send what he wrote to his former colleagues because he was not allowed to write to them. What he wanted to convey to the former colleagues was his apologies for betraying their trust in him, for causing them trouble and for affecting them by what he did. He had been informed that the former colleagues were agreeable to write letters to plead leniency for him for which he was not only grateful, but greatly moved.
The defendant’s girlfriend was a fellow student in the Department of Information Systems of City U. She describes the defendant as a responsible person with organisational skills and outstanding leadership qualities who worked hard, unselfishly, for departmental affairs. He was helpful to others and was a good listener, reliable and well trusted by fellow students. The incident was learned by those who knew the defendant with deep worry and distress. She will continue to be by his side and give him encouragement. She believed that the incident was but a momentary impulse that was committed with a view not to worry his family. She seeks a chance for him.
There are also 19 letters from the defendant’s schoolmates in City U who have known him for two, three, four or many years. He was commonly described as a diligent, faithful, sincere, reliable, helpful, good conduct, kind and loving person, with a strong sense of responsibility and integrity and is always respectful and considerate to his teachers and fellow students. A number of them also expressed their pleasure and appreciation in working under the defendant’s presidency of the student society. They were surprised to learn of his involvement in the present offence and considered that it was caused by his lack of maturity, as well as a childish and impetuous behaviour. They asked the court to treat him with mercy.
There are another nine letters from his personal friends. They all praise the defendant as a true friend, always so prepared to help and so instinctively helpful. What is notable is that there is a noodle shop owner who got to know the defendant in the days when the defendant had noodles in his shop when studying hard for examinations. This owner used to talk to the defendant and got the impression that this was a good and hardworking student. He puts in a letter to seek leniency for the young man.
The defendant had no criminal record.
It appears to me that all those who knew the defendant praise him as a hardworking student, a young man with an aspiration to get himself into university, as a colleague that was incessantly and unselfishly helpful, as a true friend with good listening ears and from whom you can always expect encouragement, etc. The incident was clearly an act out of character and that is why, words such “surprised,” “shocked” and “disbelief” are used in the letters.
Mr Wong tells me that the credit card debts of the defendant, which caused him foolishly to have committed this offence, were incurred and accumulated for paying for functions when the defendant was running for the presidency of the student society. He got carried away and was spending much more over budget. The money was not spent for his own personal pleasure in the sense of having drinks in bars and buying other expensive items.
What is most important as a mitigating factor that offsets some of the aggravating features’ effect of putting the pistol-like object against the victim PW1’s head, is the fact that PW1 has written in to urge the court to be lenient on the defendant. He and most of all other former colleagues in the shop have apparently forgiven him and I think the forgiveness is genuine because it has been followed with the active act of writing in for mitigation.
In all the circumstances of the case, and fully taking into account the mitigating factors as well as the wishes of those who have written mitigating letters to this court, I consider that a starting point of 7 years’ imprisonment is appropriate. This is the most lenient the court can get given the seriousness of the offence and the authorities in sentencing for robbery with the use of an imitation firearm.
The defendant is entitled to the usual discount of one third for his guilty plea, true remorse and clear record.
In the result, the sentence I pass on him is imprisonment for 4 years and 8 months.
I/we certify that to the best of my/our ability and skill, the forgoing is a true transcript of the audio recording of the above proceedings.