HKSAR v. CHU CHI KWAN AND OTHERS

HCCC95/2009
HCCC96/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 95 OF 2009

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HCCC96/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 96 OF 2009

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Save for one matter that lies on the file, you have all pleaded guilty at various stages to the charges you faced. Three of you, whom I shall call D1, D2 and D3, that's Chu Chi-kwan, Luk Yu-wing and Chan Yiu-shing, you were committed to this court for trial. The other three of you, whom I shall call D4, D5 and D6, namely, Wong Tak-kuen, Chan Ho-yin and Lam Pong-chun, you pleaded guilty in the Magistrates' Court to the charges you faced and were committed here for sentence.

The facts that you have admitted are in similar form and reveal serious criminal conduct. You all came to know each other on different dates between 2004 and 2006. On the material before me and on the submissions I have heard, the only thing that binds you together is your common interest in crime, especially between those of you who are older men and those of you who were teenagers at the time. It is relevant in this case, especially when it comes to sentence, to bear in mind the relative ages that you all have. At the time of these events, you, D1, were 31. D2, you were 25. D3, you were 22. D4, 5 and 6 were all 17 year olds.

The indictment that D1 to D3 face follows the same form as the charges that the others pleaded guilty to and were committed for sentence upon. Counts 2 and 3 reflect the criminal conduct that joined you all. The facts reveal that a robbery was planned and that you, D2, were the proposer of it. You approached the others and the object of the plan was to rob a Guard Force Security Services van that was delivering cash to the Sun Hung Kai Centre. That plan, in fact, got as far as an attempted robbery, reflected in Count 3.

In order to carry out that attempted robbery, there was a conspiracy to steal a van. You decided that a Light Goods Vehicle would be used as a getaway from the robbery taking the hoped-for cash. Instead of stealing, in the way of taking and driving away a vehicle, it was decided that one would be obtained by robbery and it was thus that a serious crime was committed in order to commit another serious crime.

One of you knew of a man, a 50-year-old driver, who had a Light Goods Vehicle that would suit your purpose and it was you, D2, who suggested that he should be hired on false pretences so that he could be lured to a quiet place and there attacked so that the Light Goods Vehicle could be taken from him. A conspiracy was formed to carry out this plan and it involved all of you, save the 1st defendant. The man was hired on false pretences and he was taken to a quiet place and, according to the plan, you, D3, when his back was turned, used a brick to smash him on the head. He fell to the ground. You took his vehicle. You also took some of his personal possessions.

It goes without saying such conduct is really serious. That man spent 10 days in hospital. He had a fractured skull. The right occipital bone was the one fractured. He developed repeated vomiting. He had left parietal bruising. Despite putting him in hospital, despite abandoning the Light Goods Vehicle to your plan, you still, all of you, save for D3, carried on planning the robbery of the Guard Force van. It was you, D3, whose hand had held that brick. The facts relate that what you had done frightened you and that in appreciation of that, you withdrew from the planned robbery.

The nature of the planned robbery is one that is familiar to criminal courts throughout the world because when banks deliver substantial quantities of banknotes to their branches, they are vulnerable to criminals like you. You clearly knew about the delivery here. It happened at 3 in the morning at the Sun Hung Kai Centre on various days. The vehicle carried $9 million in cash. Two Guard Force employees would ferry cases of cash across to the bank, one carrying the money, the other carrying a shotgun. Each trip they carried 2.4 million in cash and it was that 2.4 million that you were after.

In the usual way of these things, there was substantial preparation. D1 and D2, you attended the scene and carried out reconnaissance. A bag was prepared to take away the cash. A trip was made to Shenzhen to obtain a number of spray canisters of a chemical, commonly known as Mace, or pepper spray. An extendible baton was obtained and carried to the scene. There was some false starts where the operation was called off due to the presence of police officers but despite that, your determination was such that in the early hours of 6 June the attempt was actually made.

The actual members of your gang who were to carry out the physical part of the robbery were the youngsters, D4 and D5. They waited for the two security men to come out of the lift and the pepper spray was used on them. The employee carrying the shotgun was not perturbed and was able to hold up his shotgun; point it at the two robbers and demand they drop their weapons immediately, which they did. The police had known of this and they quickly moved in and made arrests. The rest of the gang were acting as lookouts, ready to hail a taxi to get away, or, in the case of the two elder men, had put themselves at a distance from the actual robbery itself.

The relation of those facts reveals determined and serious criminal activity. I am not sympathetic to mitigation by the elder men saying they were only lookouts. The structure of the relationship between you and the youngsters who were actually doing the robbery itself was such that I draw the obvious inference that they were acting under the influence of at least you, D2.

Efforts have been made in mitigation to paint the facts of the attempted robbery in Count 3 as being a street robbery with some Mace, coupled with a submission that seeks to pray in aid the case of Mo Kwong-sang and therefore limit the starting point to one of a robbery where no firearm was used. I am afraid that does not fit the facts here. This was an organised attack by a criminal gang on a Guard Force operation and it is not right to say that no firearm was involved. You robbers knew perfectly well a shotgun was carried.

In a slightly different neck of the criminal law it is well known that one of the vices of carrying an imitation firearm is the risk of a response by security officers or policemen who use their real firearms. It is a small point in the overall context of the case but one worthy of mention.

Count 1 on the committal for sentence concerned an offence of arson. This involved D4 and D5. There had been a dispute between two men, one of whom owned an expensive Mercedes motorcar. The man who had taken against him knew the two 17-year-olds, D4 and D5, and recruited them to damage that vehicle by fire. They were shown what to do. There was some practice. They found the car in a car park and used thinner to throw on it, igniting it. The repair cost came to $230,000. It was a serious piece of criminal conduct, carried out by 17-year-olds at the behest of an elder man.

I shall start by dealing with Count 2 when it comes to looking at starting points. We all know the authority that says that for what is called a head-bashing robbery, a starting point of at least 8 years is called for. This was a particularly nasty head-bashing robbery. It does not need me to repeat here what was said in the leading case upon the subject about the effects of such head injuries upon the victims. Not only did this robbery plan an attack on the driver from the beginning, it was agreed upon in the context of a gang operating in order to acquire a vehicle for a robbery.

I shall take a starting point of 9 years' imprisonment for the adults, that is D2 and D3. For D4, 5 and 6, the 17-year-old conspirators at the time, I shall take a starting point of 8 years. In the usual way, any plea of guilty in this case earns a discount of 33 per cent. It is right to point out that D4, 5 and 6 pleaded guilty in the Magistrates' Court and expressed a willingness to give evidence against the others then, right at the beginning. As it turns out, they have not had to give evidence because, one-by-one, the others fell to pleas of guilty.

I shall reflect that attitude, in their willingness to give evidence against the elders, by increasing the discount. It cannot be extended to as much as 50 per cent, as counsel for the defendants urged upon me, because that 50 per cent is a position acquired when people do actually give honest evidence and are believed and achieve conviction. So for those three, D4, D5 and D6, I shall give them a discount of 45 per cent.

The 2nd defendant, at the first pre-trial review of this case, indicated that he would plead guilty and that he would give evidence against the remaining defendants. He will get credit for that but he cannot have as much credit as the youngsters; his offer coming later in time. I shall give D2 a 40 per cent discount. Applying those different discounts to the two different starting points results in the sentences on Count 2:

For D2, there will be a sentence of 5 years and 4 months;

For D3, 6 years;

For D4, 5 and 6, 4 years and 4 months.

Let me turn now to Count 3, the attempted robbery. In looking for a starting point, I decided that 10 years was too little. I decided that 12 years was too much. It was thus the rather unusual figure of 11 years commended itself to me and that is the starting point I take in respect of the adults, D1 and D2. In respect of D4, 5 and 6, I shall take a starting point of 10 years.

The 1st defendant has his one-third discount, which results in a sentence of 7 years and 4 months.

The 2nd defendant has his 40 per cent, resulting in 6½ years' imprisonment.

D4, 5 and 6, on their 10-year starting-point, have 45 per cent discounts, giving sentences of 5½ years' imprisonment.

That leaves Count 1 in respect of the 4th and 5th defendants on the arson. I shall take a starting point of 4 years. I shall apply the 45 per cent discount, which will give a sentence of 2 years and 2 months. In the general scheme of things, I shall round that down and pass sentences of 2 years upon Count 1.

There then comes to those who have to be dealt with on more than one count or charge, the question how I should relate the sentences to each other. That doesn’t apply to the 1st defendant. His sentence is 7 years and 4 months.

In respect of the 2nd defendant, I shall overlap the sentences on the two counts he faces to produce a sentence of 10½ years and they will be overlapped to that extent.

For the 3rd defendant, on the 2nd count that he faced, there is a sentence of 6 years' imprisonment.

For D4 and D5, I shall overlap the sentences by 22 months to produce a total of 10 years' imprisonment.

For D6, I shall overlap the sentences to produce a total of 8½ years.

There has been a deal of mathematics in working out those sentences but it is the end result that matters. I like to think the mathematics has been my servant and not my master because looking at those in the dock, looking at the facts and looking at the actual sentences they have ended up with, I have tried to do justice between them and to reflect how I perceive the criminality in the case.

One matter is still worthy of mention, in that the 1st defendant, for his part on the charge he faced which was his participation in the attempted robbery, receives a sentence of 7 years and 4 months, whereas D3, whose hand held the brick, receives a sentence of 6 years. I would not want it thought, because of that, that this court in any way put a value that was different between the health of that driver who was hit on the head and the extent of the crime in the attempted robbery.

Posing that, in fact, is not the question that these facts demand of me because sentencing is not just putting a value on human suffering. I have to fit the sentences into the general scheme of sentencing in crime. For the head-bashing that took place in this case, the starting point that produced the sentence of 6 years is well settled and I am not justified in stepping much beyond that, but equally, the range of sentence for gangs of robbers who target bank deliveries of cash is in the region, as I understand it, that I have started at.

The fact remains that even though 17-year-old youths were employed to do the riskier part of the job, this was a sophisticated plan to carry out an attempted robbery of a sort that attracts the starting point that I have taken. It was only the fact that the robbers themselves did not carry firearms that stopped that starting point being much higher in the teens of years.

The sentences are long ones, especially for those of you who were only 17 at the time, but that youth is not so extreme that it allows me to mitigate the sentences any more than I have. Though it will be perceived in the sentencing that the 17-year-olds have been dealt with more leniently than the adults, that does not reflect that I have let youth have more than its say in the mitigation. It reflects the fact that I regard the conduct of the adults in using youngsters to be an aggravation.