Facts
The facts admitted by both defendants showed that on 2 May 2019, a Mr Tsoi went to the Chung Ying Renminbi Exchange Company situated at Tak Man Street, Hunghom to collect $4 million cash. Tsoi put the money inside his backpack and left the shop. While Tsoi was walking outside Whampoa Garden Site 2, someone pulled his backpack with force. Tsoi turned to see two males on either side of him, behind him. One of the males - we call Male 1 - pointed a knife at Tsoi, and Tsoi was pushed by one of the males. Tsoi fell down onto the ground and his left calf was hit by an object held by one of the two males. Tsoi’s lips and front teeth were injured when he fell onto the ground.
One of the two males took Tsoi’s backpack and fled. Tsoi got up and shouted for help. He also gave chase. Two members of the staff of a nearby restaurant, a Mr Yip and a Mr Chan, heard Tsoi’s shouting and saw the two males running towards Tak Fung Street. One of the males, that is Male 1, was carrying a light-coloured backpack while the other male, Male 2, was carrying a dark-coloured one. They two gave chase. Mr Yip managed to get hold of one of the males, that is Male 2, and held onto that male’s backpack to prevent him from leaving. However, Male 2 successfully got away from Mr Yip, but Mr Yip managed to hold onto the backpack.
An off-duty police officer, that is a detective sergeant, was driving in the vicinity and saw the two males running past his vehicle and kept looking behind. Another off-duty officer, a sergeant, witnessed part of the chasing and saw the two males running towards him. When the two males were getting closer, the sergeant declared his police identity.
One of the males, that is Male 1, immediately discarded a backpack and fled. The other male, Male 2, ran towards Hunghom’s direction. The sergeant managed to subdue the male. Mr Yip and Mr Chan also came forward to provide assistance. Male 2 successfully escaped.
After investigation by the police, Male 1 was identified to be the 1st defendant. Inside the light-coloured backpack discarded by the 1st defendant, the police found, among other things, a knife of about 45 cm in length. Male 2 was subsequently found to be the 2nd defendant. The black backpack which Mr Yip successfully took away from the 2nd defendant was found to have the $4 million cash inside. In other words, the money was fully recovered.
When the 1st defendant was arrested, he remained silent under caution. However, during two video-recorded interviews, the 1st defendant claimed it was the 2nd defendant who made him commit the robbery as he owed the 2nd defendant money. D2 and another unknown male met up and he was instructed to attack a Chinese male. He was given a bag which contained a knife. When the Chinese man appeared, he was instructed to attack that man. He did not injure the man with the knife, and it was D2 who pushed the man to the ground and snatched the backpack from the man.
D2 was also arrested. He also remained silent under caution. During two video-recorded interviews, D2 denied any knowledge of the robbery, claiming he was not at the scene, and was with a particular friend at the time. Police inquiry with that friend showed that D2 was not with him at the time as claimed. D2 was positively identified by the detective sergeant to be Male 2. D2’s DNA was also found on items inside D1’s backpack.
The fleeing of D1 and D2, the chasing of them by various people, the struggle between Mr Yip and D2 and Mr Yip taking away the backpack of D2 which contained the $4 million cash were all captured by various CCTV installed, including the subduing of D1 and the successful escape by D2.
Tsoi attended the Queen Elizabeth Hospital on the same evening. He was found to have abrasions on right wrist and forearm and laceration on left calf. He was treated and discharged on the same day. Fortunately for Tsoi, he has fully recovered.
Authorities relied on by the prosecution
The Prosecution relied on two authorities. The first one is the well-known case of Mo Kwong Sang in which the Court of Appeal gave sentencing guidelines for armed robberies where an accused used a knife or other dangerous weapon but excluding firearms: where the knife or dangerous weapon was displayed to the victim, the starting point is 5 years; if invasion of private premises occurred, a sentence of 6 years would be appropriate; where physical violence is used, 7 years should be considered. If there are other aggravating factors, the sentence should be increased.
The second case relied on by the prosecution is the case of HKSAR v Yiu Chi Ming & Anor. That is case reference CACC 472/2011. In that case, the appellant was convicted of robbery. The facts were that after the victim had taken out $440,000 from a bank, the brown envelope containing the money was snatched from him by a male when he was pushed to the ground by another male. The two robbers fled in a private car, the registration of which was noted by a passer-by.
The appellant, according to a garage owner, took the car to his garage and asked to have the registration plate replaced by another set of plates inside the boot of the car. The appellant was arrested and convicted after trial. The trial judge pointed out that no weapon was used. However, he was of the view that it was not a usual street robbery due to the sum of $440,000 having been stolen. He adopted a starting point of 6 years.
On appeal, the Court of Appeal dismissed the appellant’s application for leave to appeal against conviction. The Court of Appeal considered the robbery was well planned and carefully executed; no less than three robbers were involved. The Court of Appeal was of the view that bank robberies are particularly serious offences because banks are in possession of large amount of cash, thus offering great temptation to potential robbery.
The Court of Appeal noted that whilst the appellant and his accomplices did not actually target the bank, the same reasoning applies as people who drew large sums of money from the bank are vulnerable, and they too offer great temptation to potential robbers. The Court of Appeal was satisfied that the robberies of victims who have just left the bank deserved great deterrence. The Court of Appeal was not persuaded that the 6-year starting point adopted by the trial judge was manifestly excessive.
Background and mitigation
Now, 1st defendant is represented by Mr Peter Pannu. D1 was born in India, aged 22. He is a Form 8 recognisance holder, currently waiting for asylum status verification. According to the antecedent statement prepared by the police, D1 was educated up to primary level in India and previously worked as a farmer there. D1 has one previous conviction of robbery for which he was sentenced to 8 years and 4 months. That is the case of HCCC 153/2020. I will refer to it more later.
Mr Pannu had no quarrel with the guidelines set down in Mo Kwong Sang. He submitted that the defendant at Yiu Chi Ming had an awfully bad criminal record with similar convictions, which was not the case of D1 here. That was of course only correct before the defendant was sentenced for the case 153/2020. The Court of Appeal had advised courts that robberies can be committed in a variety of ways and each case will be factually different, and earlier authorities may not be particularly helpful.
In the present case, Mr Pannu submitted that a knife was carried and displayed and more than one robber was involved; minor injuries were inflicted when the victim was pushed to the ground; all the stolen properties were recovered. He submitted this case is at the lower end of the scale of gravity.
Now, D2. D2 is represented by Mr Richard Donald. In mitigation, I was informed that D2 had just turned 41 and was born in India. His wife is in India. He had two sons, aged eight and ten, both living with their grandmother. D2 was a farmer by occupation. He is also a Form 8 recognisance holder in Hong Kong. He had a previous conviction of robbery in August 2016 and was sentenced to 38 months’ imprisonment.
Mr Donald informed me that the defendant was offered the job two days before the robbery. He was to receive HK$5,000. When he arrived at the scene, he met D1 for the first time. He also met others involved in the case. He was instructed to snatch the bag but not to find out what was inside it. He took part in the robbery but was unaware that D1 had a knife in his possession. He did not know that D1 would use a knife in the robbery either. D2 did snatch the bag and fled but the bag was snatched away from him.
In mitigation, Mr Donald submitted that D2 had pleaded guilty at the earliest opportunity; he is remorseful; he agreed to take part in the robbery on the basis of a simple bag-snatching case, not being aware that a knife would be used; D2 was not the mastermind; all the money was recovered; injuries to the victim was minor in nature; D2 has offered assistance to the authorities.
Mr Donald accepted there are aggravating factors in this case: D2 is a Form 8 holder; a knife was used in the robbery, albeit that D2 was unaware of it; the victim was injured, though injuries were minor; it was a well-organised robbery, although D2 did not involve in the organisation; large money was involved in the robbery, albeit all the money was recovered.
Mr Donald referred to the case of Mo Kwong Sang, the case of Yiu Chi Ming and the case of Andrianiaina, and submitted a starting point between 5 to 6 years would be appropriate in the case of D2.
My consideration
Now, in this case, both defendants acted in concert and targeted the victim who had just collected a large sum of money, $4 million, from a money changer. A knife was used to threaten the victim. While the victim was hit with an object on the back of his leg, that object does not appear to be a knife as no wound was sustained by the victim. The victim did sustain injuries to his lips and teeth when he hit the ground upon being pushed by one of the assailants. Fortunately, the incident was seen by two restaurant workers who came to the rescue of the victim, and the backpack containing the money was recovered while one of the robbers fled. In other words, the victim did not suffer any financial loss as a result of the robbery.
While D1 was the one who had pointed the knife to threaten the victim, D2 was acting in concert with D1, so his culpability in this joint enterprise is the same as D1. After considering all the circumstances of the robbery, I am of the view that a starting point of 9 years is appropriate.
In the case of D1, this is the second time he committed armed robbery in a joint enterprise. He acted together with three other people to rob two persons of US$740,000 and HK$363,060 on 21 September 2018. That is the case of HCCC 153/2020 that I have just mentioned. D1 was sentenced to 8 years and 4 months’ imprisonment in that case. I am of the view that the starting point should be enhanced by 1 year to reflect this aggravating factor in this case.
Furthermore, D1 was a Form 8 holder. Being a Form 8 recognisance holder is another aggravating factor. I will enhance the starting point by one further year.
In other words, with the two aggravating factors, the original starting point of 9 years is enhanced by 2 years to one of 11 years. That equals to 132 months. D1 pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. With this discount, the sentence would be 7 years and 4 months. D1 had given assistance to the authorities. Without going into details, I have been informed and I accept that the information he had provided to the authorities are considered potentially useful. It is also accepted by prosecution that it was through the information given by D1 that D2 was arrested. And of course D2 had also pleaded guilty to this case.
I am of the view that the assistance given by D1 to the authorities together with his plea warrant a 40 per cent discount. So the sentence is therefore one of 6 years and 7 months from a starting point of 11 years.
Now, in the case of D2, I have already mentioned that I will adopt a starting point of 9 years. D2 is also a Form 8 holder and I will enhance the starting point by 1 year. D2 had a similar previous conviction in 2016, which is another aggravating factor. So I will enhance the sentence, in view of D2’s similar previous conviction, by 6 months. So with these two factors enhancing the sentence, the starting point is one of 10 years and 6 months.
D2 had pleaded guilty at the earliest available opportunity and is also entitled to the full one-third discount. With a full one-third discount, the sentence would be 7 years. D2 had also rendered assistance to the authorities which is considered potentially useful. I will give D2 a discount of slightly more than 37 per cent, inclusive of the one-third discount for plea. The sentence is one of 6 years and 7 months.
Because the 1st defendant had two current sentences going on, I have to consider totality. I have already said that the 1st defendant is serving a sentence of 8 years and 4 months for another robbery. Now, after considering the totality principle, I am of the view that 3 years of the present sentence is to run at the expiration of the 8 years and 4 months imposed in 153/2020, making a total sentence of 11 years and 4 months appropriate.
So the actual sentence for D1: 6 years and 7 months’ imprisonment, 3 years of this sentence to run at the expiration of the 8 years and 4 months imposed in HCCC 153/2020.
And D2: 6 years and 7 months’ imprisonment.