HKSAR v. MAK KIM MAN, RAYMOND AND ANOTHER

HCCC 410/2023

[2026] HKCFI 3572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 410 OF 2023

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REASONS FOR SENTENCE

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The Charges

1.  There are four counts on the Indictment in this case: two counts of robbery (1^st and 4^th counts)  contrary to section 10(1)  and (2)  of the Theft Ordinance, Cap. 210, and two counts of attempted robbery (2^nd and 3^rd counts)  contrary to section 10(1)  and (2)  of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200.  The 2^nd defendant (“D2”)  faces all four counts whereas the 1^st defendant (“D1”)  faces only the 4^th count.

2.  After a trial of some 14 days, the jury found D2 guilty of the 1^st, 2^nd and 4^th counts but not guilty of the 3^rd count (and its alternative and lesser count of blackmail, contrary to section 23(1)  and (3)  of the Theft Ordinance, Cap. 210), all by a unanimous verdict.  On the other hand, D1 was found not guilty of the 4^th count of robbery, but guilty of the alternative and lesser count of blackmail by a 6:1 verdict.

3.  The facts of the convicted counts can be summarised as follows.

1^st Count

4.  On 19 November 2020, a Mr. Chan (“PW1”)  saw a job advertisement on the internet and contacted a female called “Phoebe” about the job.  At around 9:30 p.m. on 20 November 2020, PW1 met “Phoebe” (whom he subsequently identified as D2)  at a convenience store in Yuen Long.  D2 told PW1 that they had to meet her boss and they got into a taxi.  PW1 was led to an isolated location in Yuen Long.  

5.  Soon after they alighted from the taxi, a man suddenly rushed towards PW1 and punched him in his eye.  He was knocked down to the ground and assaulted by several males while D2 was standing aside and watching the assault.  The assault lasted for about 5 minutes.  One of the males claimed that PW1 owed him money which PW1 denied.  PW1 was then forced to take off his clothes and the males present took photographs of him naked.  Personal properties including his wallet, his bank cards and two mobile phones were taken away from PW1.  They also demanded PW1 to contact his family to obtain money for his release.  PW1 thus telephoned his aunt who later transferred a total sum of $70,000 into his bank accounts.  That money was later withdrawn or transferred from his bank accounts by the males. 

6.  PW1 was later blindfolded and escorted into a taxi.  He was eventually released near a bus stop in Yuen Long.

7.  During the incident, PW1 did not sustain any serious injuries.

2^nd Count

8.  In September 2019, Miss X (PW5)  saw a job advertisement on Facebook and contacted a person known as “Ah B” and she was promised a sum of HK$30,000 as remuneration for the job.  Miss X completed the job but she was not paid the promised sum and she was unable to contact “Ah B” for the payment.

9.  In early November 2020, “Ah B” contacted Miss X again and told her that the outstanding sum would be paid to her.  On 21 November 2020, Miss X was instructed by “Ah B” to go to Yuen Long West Rail Station at around midnight where she was to meet a female.

10.  At about midnight, a female (who was subsequently identified as D2)  arrived in a taxi.  Miss X got into the taxi and D2 led her to an isolated location in Yuen long.  When the taxi stopped, D2 tried to push Miss X out of the taxi and Miss X then saw several males approaching her and they were holding rods in their hands.  The males opened the taxi door, dragged her out of the taxi.  At that point in time, D2 left the scene by the taxi.  The males then took Miss X to an open grassland nearby where she was slapped in the face and stepped on her back. The males told Miss X to compensate them for money that was lost in an investment for their boss (which Miss X denied).  They also forced her to call her family, friends and her supervisor at work for HK$50,000 but none of them agreed to provide it.  She was then forced to eat grass, remove her clothes and underwear, and masturbate herself whilst being photographed and video recorded.

11.  Later, a male victim was escorted to the scene.  Miss X was again made to remove her clothes and the male victim was forced to lick her private parts whilst they were being video recorded.  

12.  Shortly after 4:00 a.m. on 22 November 2020, Miss X was taken into a taxi and allowed to leave the scene and she was eventually released at a minibus stop in Yuen Long.

13.  During the incident, Miss X did not sustain any obvious injuries.

4^th Count

14.  On 22 November 2020, a Mr. Fung (“PW3”)  chatted with a female on a dating App.  Later that evening, he met up with the female (subsequently identified to be D2)  in Mongkok where they had drinks and chatted at a bar for about 2 hours.  PW3 was then asked by D2 to send her home as she claimed to be feeling tipsy.  They took a taxi driven by a male known as “Bo Gor” who drove them to an isolated location in Yuen Long.  Upon arrival, PW3 was dragged out of the taxi by several males. 

15.  At about that time, D1 had driven another taxi with two male passengers (“Ah Hau” and “Ah Tin”)  on board and they arrived at the scene.  D1 saw PW3 being dragged away by three other males and heard someone say “don’t hit me, don’t hit me”.  The two male passengers got off from his taxi and joined the males there at the scene and D1 drove away to a location nearby, waiting for instructions from “Bo Gor”.

16.  At the scene, PW3 was assaulted and struck with a rod by the males present.  One of them claimed that D2 owed him money and PW3 was responsible for repayment because PW3 was her boyfriend.  His wallet and bank cards were taken away from him and he was forced to disclose his PIN numbers.  One of the males (LAU Ka-yu, an accomplice who testified as a prosecution witness “PW7”)  then left with his bank cards to make a withdrawal.

17.  As instructed by “Bo Gor”, D1 came back to the scene in his taxi and drove PW7 to an ATM machine in Yuen Long where PW7 made a cash withdrawal of HK$2,900 from PW3’s bank account.  During the journey, D1 asked PW7 how much money he would make for that but PW7 did not respond to him.  PW7 then returned to the scene in D1’s taxi with the sum of HK$2,900.

18.  PW3 was then forced by the males to call his wife (“PW4”)  for more money which he did.  As a result, PW4 transferred HK$35,000 to a bank account as per the instructions given by the males. 

19.  The males present at the scene took photographs of PW3’s identity card and forced him to remove his clothing to take photographs of him naked.  They also threatened him not to report the matter to the police.

20.  Before dawn, PW3 was taken by two of the males into D1’s taxi to leave the scene.  D1 told him to lower his head and threatened that if he did not comply, he would “poke his fucking eyes out”.  Eventually PW3 was released somewhere near the Pat Sin Leng Nature Trial.  PW3 got home and reported the matter to the police and he was sent in an ambulance to the hospital where he stayed overnight for medical treatment.  As a result of the incident, PW3 sustained bruising, mild tenderness and abrasions on different parts of his body.  He was granted sick leave for 5 days.

21.  By their verdicts, the jury must have found D2 to be part of a joint enterprise together with the males at the scene to rob or attempt to rob the victims of the 1^st, 2^nd and 4^th counts.  On the other hand, the jury must have taken the view that D1 might have believed that he was assisting in debt collection (and therefore not to be regarded as dishonest)  but the jury must have found D1 to be part of a joint enterprise together with the males at the scene to blackmail PW3, and on that basis found D1 to be guilty of the alternative and lesser charge of blackmail to the 4^th count.

22.  In each of the incident alleged in the 1^st, 2^nd and 4^th counts, D2 had used or taken part in deceptive means to lure the victims to the scene so that the males at the scene would rob or attempt to rob each of the victims and she had knowingly taken part in the plan to rob the victims.

23.  In relation to the 4^th count, D1’s role was to convey the males to the scene and to drive one of the males (PW7)  to an ATM machine in Yuen Long to withdraw money from the victim’s bank account, and later to send the victim away from the scene under the escort of two of the males.

D1’s background and mitigation

24.  D1 was born in 1961.  He is now aged 65 and was aged 59 at the time of the offence.  He had two marriages with two children, but he is now divorced.  He no longer has any contacts with his former wives and children.  Both of his parents already passed away and he has a younger sister.  He had been a taxi driver from 2017.

25.  His counsel, Mr. Kwan invited the Court to view the offence of blackmail as an alternative and lesser offence to robbery when its maximum sentence is 14 years whereas that of robbery is life imprisonment. 

26.  Mr. Kwan submitted that by their verdicts, the jury must have found D1 to have honestly believed that he was just assisting in a debt collection exercise.  It was further submitted that D1 was used by “Bo Gor” in committing the offence of blackmail and that he was not present when actual violence was used on the victim. Mr. Kwan submitted that D1’s participation in the blackmail was peripheral and minimal in that he merely transported people around.  It was further submitted that D1 was at all times co-operative with the police.  Given his age and his previous good character, it was submitted that the chances of his reoffending would be slim.

D2’s background and mitigation

27.  D2 is currently 23 years old and single, but she is now the mother of a 4-year-old son.  At the time of the offences, she was only 17 years old.  D2 has a previous conviction of theft (for shoplifting)  in 2016.

28.  D2 comes from a broken family.  Her parents divorced when she was in kindergarten and she was initially cared for by her grandmother but later, she was arranged to reside in Children’s Homes.  She had practically no contact with her father or mother.

29.  During her stay at the Children’s Home, D2 associated with peers from complex background.  Under their instigation, she committed the offence of shoplifting and she was later sent to a Rehabilitation Centre.

30.  It was during her time at the Rehabilitation Centre that she met a female named “Ah Bing” who became her same-sex partner.  It was “Ah Bing” who got D2 to become involved in these offences.  Following the incidents of offences, their relationship deteriorated, and D2 formed an intimate relationship with a man which led to her subsequent pregnancy.

31.  At the time of arrest, D2 was already pregnant and she gave birth to her son while remanded in custody.  The Correctional Services Department allowed her to personally care for her son whilst in custody until he was one and a half years old.

32.  During remand, D2 completed two courses in nutrition with good results.  She was motivated to acquire the knowledge necessary to better care for her son in the future and to equip herself with practical skills for better employment prospects.

33.  Counsel acting for D2, Ms Lai, told the Court that the moment her son was born, D2 felt deeply the joy of being a mother, while understanding her heavy responsibilities as a mother.  Having grown up without parental love herself, she is now determined not to let her son grow up in a similarly broken environment.  She hopes to reunite with her son after serving her sentences, to be a good mother, and to ensure that he does not repeat her past mistakes.

34.  Ms Lai urged the Court to take into account that D2 was young and highly immature at the time of the offences and to impose lenient sentences on D2.

Discussion on sentence

35.  I shall first deal with D2.  She has been convicted after trial of a total of 3 robbery or attempted robbery offences involved in a total of 3 incidents.  In those incidents, the victims were lured to remote places in Yuen Long where they were assaulted, abused, robbed or subjected to attempted robbery by others.  Violence and ill-treatment were exerted on the victims at the scene by a group of males.  There were clearly aggravating factors in the robbery or attempted robbery in each of the three incidents: see R v Mo Kwong-sang [1981] HKLR 610.  It is also obvious that there was a criminal syndicate involved in the incidents when the same modus operandi was used to rob innocent victims.

36.  D2 was found to be involved in three incidents: her role was to lure the victims to the scene where they were robbed or subjected to attempted robbery.  Whilst D2 did not take part in the assault on the victims, by the verdicts of the jury, she was found to be part of the joint enterprise to rob the victims.  In my assessment, whilst she was clearly not the mastermind, she played an important role for these crimes to be perpetrated on the victims. 

37.  Given such serious and multiple offences committed by D2, her personal background does not have any weight in mitigation.  As she had pleaded not guilty, there are no mitigating factors in her case.

38.  Having considered the authorities supplied by the parties and the role played by D2 in the offences, I shall impose the following sentences on D2 for the 3 convicted counts:

1st count	7 years’ imprisonment.
2nd count	7 years’ imprisonment.
4th count	7 years’ imprisonment.

39.  Applying the totality principle, I take the view that the overall sentence to be imposed on D2 should be 10 years’ imprisonment.  To achieve that, I make the following orders: 18 months of the sentence for the 2^nd count to run consecutively with that for the 1^st count; and 18 months of the sentence for the 4^th count to run consecutively with that for the 1^st count.  Subject to these orders, the sentences are otherwise to run concurrently.  In arriving at the overall sentence, I have taken into account her role in the commission of the offences.  D2 is thus sentenced to an overall term of 10 years’ imprisonment.

40.  Turning now to D1. He was convicted after trial of one count of blackmail.  Although he has a clear record, given the seriousness of the offence, his personal background does not carry any weight in mitigation. 

41.  Having considered the authorities supplied by the parties and the role played by D1 in the commission of the offence, I shall impose a sentence of 4 years and 6 months’ imprisonment on D1 for the blackmail offence.  D1 is thus sentenced to a term of 4 years and 6 months’ imprisonment.