CRIMINAL CASE NO. 36 OF 2012
COURT: You have each been found guilty on your own pleas of two counts of robbery.
The first related to robbery of a 53-year-old female around 4 am on 22 January last year in a convenience store attached to a petrol station in the New Territories.
On that occasion the two of you entered the store and from the Summary of Facts which you have agreed the 1st accused produced a knife which he held against her neck. That knife had been carried with the two of you to carry out this robbery, having been obtained early in the evening from the 2nd accused’s home. Whilst it was not a particularly sophisticated robbery, these facts demonstrate that it was a pre-planned robbery.
The lady concerned was told to open the till but was unable to do so. The 1st accused gave the knife to the 2nd accused so that the threat continued towards the lady whilst he, the 1st accused, succeeded in opening the till. All the money in the till, amounting to $2,400, was taken together with a number of packets of cigarettes before the two of you ran off.
It was said that you had committed this offence with a third young man. Each of you indicated your willingness to make, and indeed you did make, non-prejudicial statements implicating an individual. He stood trial but at the end of the trial he was acquitted.
It is worth noting that the allegation was that his role in the burglary was that of lookout and he played no part in the actual threatening of the lady in the shop.
The prosecution elected to call only one of the two of you, the 1st accused, to testify. In the course of your testimony, 1st accused, you recanted on the most critical part of the prosecution statement. That was just what the extent of the knowledge of the third male was at the time of the events, whether he knew that there was to be a robbery or, on your changed version, he had only been told there would be a burglary.
You said in evidence, and this is repeated on your behalf today by Mr Lo who appears for you, that the reason you had changed from what you said in your statement to your testimony in court was because you had had an opportunity of thinking about what you had said in the statement prior to the trial; that as a result of that further consideration, you realised that what you had said in your statement was incorrect and you now were telling the court the truth.
I want you to be quite clear that I do not believe a word of that. That said, however, the jury did acquit the accused.
Be that as it may, 2nd accused, you were not called on to testify in respect of that first offence.
A few weeks later, at around 1 am this time on 13 March, the two of you again committed robbery. A singular feature is that you robbed the same store and the same woman.
The Summary of Facts which you both agreed recorded,
“At around 1 am on 14 March 2011, D1 and D2 entered the store. D2 declared robbery to Madam Tai. He further said to Madam Tai that he would not rob after this one and told her to take out all her properties. She was scared and did not make any response.”
Once again, 1st accused, you went to the till, opened the till and took out on this occasion $1,690. You also took 26 packets of cigarettes. The two of you then fled.
Neither of you has a clear record. 1st accused, you have previous convictions for theft and are subject to a small suspended sentence for breach of a Probation Order.
2. d accused, you have two previous, one of which relates to copyright and the second is a further robbery which I am told was committed soon after these two robberies. For that you were committed to a Training Centre.
Your counsel on the previous occasion indicated that you had hoped that I would call for reports for your suitability for some form of punishment other than immediate custody. I declined to do so. It seemed to me then, as it does now, that these offences, particularly as there were two of them, are demanding of immediate periods of imprisonment for each of you.
I recognise that at the time when these offences were committed the 1st accused was 17 and the 2nd accused about 18. In fact, the two robberies straddled his 18th birthday.
For the sake of completeness, I note that there was a third person charged in respect of the second robbery. His role does not feature in the Summary of Facts so it is presumably safe for me to proceed on the basis that only the two of you entered the premises to carry out the actual robbery.
The Court of Appeal has laid down quite clear guidelines for the assistance of courts in sentencing in matters of this nature. The seminal decision is that in Mo Kwong Sang, which is a fairly old case decided in 1981, and in 2000 the Court of Appeal in Ma Ping Wah said that those guidelines did not need any further refinement at this stage. It has been consistently followed over the years. It indicates that the appropriate sentence and where the accused was carrying a knife which he displayed to his victim should normally be 5 years.
It then suggests that 6 years would be appropriate where private premises, including business premises, are entered. The further suggestion is made that if there is physical violence wreaked on the victims, then the starting point should be 7 years.
The court went on to say these suggested sentences should be increased if there are other aggravating factors. Among these, although the list is not exhaustive, are invasion of domestic premises during the night, the presence of more than one person in the group of robbers, threats made to victims, ill-treatment of elderly persons and children, and a multiplicity of offences of a similar kind.
Although the court there said invasion of domestic premises during the night is an aggravating feature, I do not see any distinction to be drawn here between invading domestic or invading commercial premises which were open for trading. The rationale behind the cases which have regarded invasion of domestic premises at night as being an aggravating feature is that a person entering those premises would reasonably be anticipated to expect the presence of people inside.
Here you knew full well that this woman was in these premises and alone, so that is an aggravating feature; that there were more than one of you is an aggravating feature; that this knife was actually produced, not merely shown to the victim but was actually produced and held against her throat and exchanged between you to ensure that the threat to her continued is also a factor.
In respect of the 1st count, the appropriate starting point appears to me to be one of 8 years’ imprisonment.
The second offence is slightly different of course because no knife was in fact shown to the woman concerned. In all other respects the features are the same. This was in the early hours of the morning, or what might be described as the dead of night; you knew, not only because you had been able to see it on that occasion but from your previous experience, that you would be robbing a middle-aged woman on her own; you cannot have been unaware of the fear which you caused her on the previous occasion; you obviously made a decision jointly to return to and rob this same woman and to subject her to fear for a second time.
It would certainly be appropriate to describe your conduct on this second occasion as audacious, but probably more accurate to regard it as being cynical.
It seems to me that you did not need to carry a knife with you on this occasion. This offence occurred within a matter of weeks of your previous raid on her shop and the threat was implicit in the words of the 2nd accused which I quoted earlier. You did not need to produce a knife because you knew she was vulnerable and would comply with your demands.
On the peculiar circumstances of this case I see no difference in your level of culpability. I take the same starting point of 8 years.
You both pleaded guilty so you are entitled to a one-third discount. That reduces the sentence to 5 years and 4 months.
Then the issue arises of what further discount you should receive, if any, for your having made the non-prejudicial statements and, at least at the lowest level, expressed a willingness to testify.
Dealing with the 2nd accused first, I am persuaded by Mr Lo that he is entitled to a further consideration for having made the statement and expressed his willingness to testify. In the event, it was the prosecution’s decision not to call him.
In these circumstances, I believe he should still receive a discount and the appropriate level of that, in my judgment, is 6 months. That reduces the sentence on the two counts to 4 years and 10 months’ imprisonment.
The difficulty which I face with the 1st accused is that I do not know the basis on which the jury acquitted the other accused. It is important to bear in mind that that accused’s defence was one of a lack of participation in a joint venture to rob in the sense that he did not have knowledge of the robbery or the intention to rob. It may be, and I simply do not know, that the jury accepted the evidence of the 1st accused in court and the explanation for the change of statement.
It is difficult to see why when someone has given a non-prejudicial statement, contradicts what he says in that statement subsequently and is declared hostile that person should receive any further discount at all. However, what the court is concerned with is ensuring that an accused has a fair trial and a just result.
In the circumstances of this case I do not believe that I would be justified in withholding the additional discount.
A further factor is that there would then be a real disparity in the sentences of these two accused which possibly would have come about simply by the prosecution’s decision, an understandable decision which I in no way criticise, not to call the 2nd accused. He would still receive his discount but the 1st accused would not.
In the circumstances, I will allow the 1st accused the same 6 months’ discount in respect of each count.
These were two separate and distinct offences, committed on two separate and distinct occasions. In theory totally consecutive sentences could be imposed but I have to have regard to the overall starting point and to ensure that it is not excessive.
I did refer earlier to Mo Kwong Sang and the reference to a multiplicity of offences. This is a feature which I am considering separately in regard to the question of how the sentences should be served.
In my judgment, the appropriate overall starting point for both offences would have been one after trial of 9 years’ imprisonment, and this is best reflected by ordering that 1 year and 2 months on Count 2 be served consecutively to the sentence on Count 1. A better way of expressing it is to say that equates to an overall starting point of 9 years after trial which is appropriate in these circumstances.
On Count 1, each of you is to serve 4 years and 10 months’ imprisonment.
On Count 2, each of you is to serve 4 years and 10 months’ imprisonment, of which 1 year and 2 months is to be served consecutively to the sentence on Count 1.
Insofar as the 1st accused is concerned, I am not going to make you serve an additional 7 days for that offence. The suspended sentence is activated and is to be served concurrently with the two sentences imposed today.
By operation of law, the Training Centre Order made in respect of the 2nd accused lapses.