CRIMINAL CASE NO. 111 OF 2010
COURT: You have been convicted on your own plea of two offences of attempted robbery, each in respect of a branch of a bank in Kowloon and each on the same day 18 October 2003.
In each instance you entered the branch of the bank concerned wearing a cap but nothing else that sought to conceal your appearance. You then presented a note to one of the tellers which contained the demand for money, $100,000 in the first instance and $50,000 in the second, as well as an assertion that you had a gun and bomb.
You had with you an imitation firearm which you produced on each occasion. On the first occasion the teller realised that the firearm was imitation but it seems that the second teller was not quite so astute. On both occasions the teller sounded an alarm and you fled the bank branch empty handed leaving behind the demand note.
Each of these incidents was captured on the bank’s closed circuit television. Your appearance was clearly visible from the photographs which I have seen compiled from the CCTV recording.
It was not until six years later, September 2009, that your name was placed on the police wanted list and the Immigration Department watch-list. That soon paid dividends and you were arrested on 29 September last year.
When you were arrested and cautioned you admitted the commission of the two offences which you subsequently confirmed, supplying further detail in interviews with the police. You explained that you had committed the offences because you were in need of money.
There are several remarkable features in this case. By the time you had committed these offences you already had three previous convictions for other criminal offences: being a member of a Triad Society in 1973, when you were 17 and one for burglary and another for attempted burglary 11 years later in 1984.
It must therefore be that at that early stage your fingerprints were on record with the police. The demand note which you used on the first occasion bore your fingerprint, yet despite this, no connection was made. More extraordinary however, is that in 2007, four years after you committed these offences, you were convicted of managing a vice establishment and served a sentence of 8 months imprisonment yet still no connection was made. It was almost 2 years after you had served that sentence that you were placed on the wanted list.
The explanation I have been given today is almost as extraordinary. The police did not consider the fingerprint impression on the demand note as good enough evidence against you, yet I am told, in 2009 they put you on the wanted list on the strength of that evidence.
These attempted robberies were amateurish attempts on your part which resulted in no loss to the banks. The fact that you carried an imitation firearm and presumably did not carry a bomb, of course removed any prospect of harm to the staff of the banks. Even so, your conduct at the time must have been a very frightening experience for them.
These might have been acts of financial desperation but that is no mitigation. The law is well settled that as a matter of policy in the case of bank robberies, no distinction is made between cases where a genuine firearm is used, but not discharged, and those where an imitation firearm is used. This is primarily because of the chance that police or security services summoned to the scene might open fire with the attendant risk of injury to innocent bystanders.
This has been so since the decision of the Court of Appeal in 1995 which indicated that the appropriate starting point for the offence after trial is 10 years’ imprisonment. Although that case related to a robbery, as opposed to attempted robbery, the principle is that an attempt to commit an offence carries the same sentence as the completed offence.
From a starting point of 10 years you are entitled to a reduction of one-third by virtue of your plea. That results in a sentence of 6 years and 8 months on each count. There is nothing in the matters that were advanced before me this morning, on your behalf, that justifies a further reduction in the sentences save perhaps for one matter.
I am told that when the police came looking for you in 2009 you were in Macau. You were told that they were making inquiries about you and you realised what it must have been in connection with. You then returned to Hong Kong in order to finally face the music many years after the commission of the offences.
Taking into account the fact that the delay before there was even an attempt to investigate you in connection with this offence and your return, in the circumstances I am prepared to grant you a further small reduction of 8 months’ imprisonment. I recognise, of course, that you were quite content to keep your head down and hope that you would get away with the two earlier offences but I still take the view that it would be fair, in all the circumstances, that you have some further small reduction.
The offences were two separate and distinct offences, albeit, committed within hours of one another but in different parts of town. Applying the principle of totality to ensure that the sentence reflects the criminality of your overall conduct, subject to the mitigation I have mentioned, in my judgment, the overall sentence which you should serve is one of 7 years’ imprisonment.
On each count you are to serve 6 years’ imprisonment. The sentence on Count 2 is to commence 1 year after that on Count 1.