HKSAR v. LAU CHUNG KEE

HCCC 445/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 445 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a count of conspiracy to rob, together with Wong Ka-fai, (Wong) Fong Siu Yu (“Fong”) and other unknown persons on 4 November 2013, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210, and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  In summary, the defendant and others conspired to rob and did eventually rob Mr Yang Gengie (Yang) of electronic products (the goods) which were valued at about $4 million on 4 November 2013.  A knife was used in the robbery.

The facts

3.  Mr Yang operated a company on the Mainland dealing in electronic products.  On 4 November 2013, Mr Yang purchased a large number of iPhones and Intel computer processing units (“Intel CPU”) (the goods) at various places in Hong Kong.  At about 8:30 p.m. on 4 November 2013, Mr Yang engaged the transportation services of Power-King Transportation Company Limited (“Power-King”) to collect and transport his purchases.

4.  The defendant was the registered owner of a light goods vehicle and worked as a driver for Power-King, was assigned the job.  He used his light goods vehicle to pick up Mr Yang at Sing Yip Industrial Building in Kwun Tong, and drove him to various places in Hong Kong where they collected boxes of goods. 

5.  Upon collection of the goods the defendant was to return Mr Yang with all the goods to Sing Yip Industrial Building in Kwun Tong. However before his return there the defendant conspired with Wong and Fong to rob Yang of these goods. 

6.  Wong received a call from the defendant saying he was driving a Mainlander at Kwun Tong to pick up a lot of iphones.  The defendant asked if he would be interested to rob the Mainlander.  Wong replied in the negative.

7.  Approximately 20 minutes later Wong received another call from the defendant again saying he was driving the Mainlander to Mong Kok and asked about his interest in robbing the Mainlander.  He estimated the iphones value at more than $1 million. 

8.  Wong, Fong and 3 others were having tea together at that time – they discussed it and agreed to commit the robbery. Wong then called the defendant. The defendant told them to drive to King Yip Street to wait for his LGV in order to stage a traffic accident, he would then get off from his vehicle to pretend checking and they could then drive the defendant’s vehicle away.

9.  In the meantime, whilst driving to the destination the defendant’s driving manoeuvres attracted the attention of Mr Yang who asked why he drove in that manner.  Soon after, Wong, Fong and others who were driving another vehicle had a traffic accident with the defendant’s LGV near Manulife Centre at Kwun Tong.  The defendant told Yang they had been involved in a collision and alighted from the vehicle.  Two men (Wong and Fong) boarded the defendant’s LGV, one of whom declared robbery and the other pressed Yang’s head downwards and placed a knife against the back of his neck, after which the vehicle was driven off.  Eventually, Yang was pushed out when it came to a stop on Wai Fat Road.  Then, Yang reported the matter to the police.

10.  When the defendant alighted from the LGV after the collision he was seen to become involved in what appeared to be a fight with some men from the other vehicle. Then he was seen to be pushed into the other vehicle which drove off.

11.  The defendant made a report to the police that evening claiming that he had been assaulted and dragged into the vehicle which drove off and he was then released somewhere in Ma On Shan.  His T-shirt was torn and he had some superficial redness. He attended Prince of Wales Hospital where the police met up with him to make enquiries.  On the pretense of assisting the police with their enquiries, he made a statement and he took the police to the location where he had been dropped off by the robbers. He continued pretending that he was assisting the police with their inquiries until he left Hong Kong for the Mainland on 5 November 2013.

12.  After pushing Yang off the light goods vehicle, Wong drove to Shatin and loaded the goods onto another light goods vehicle.

13.  Wong, Fong and 2 others then sold part of the stolen iPhones and Intel CPUs to others for HK$1.5 million in Mong Kok.  Wong gave each of them HK$200,000 right away.

14.  On or around 7 November 2013 Wong met the defendant in the Mainland and offered to give him $200,000. The defendant only took $100,000 and said he could not keep so much cash as he needed to report to the police the next day.

15.  On 8 November 2013, Wong had borrowed a black color Mercedes-Benz from a friend to transport some of the stolen goods from the van to a room at Sha Kok Estate.  At that time police officers were conducting a surveillance operation at Sha Kok Estate and observed Wong, Fong and another.  Some of them unloaded some goods from the car to room SR67 in San Martin House.  A subsequent search of the room by police officers revealed the presence of three cartons which were found to contain 72 iPhones and 945 Intel CPUs (these goods were part of the stolen goods and were valued at $1.15 million)

16.  On 8 November 2013 when Wong returned to Hong Kong through Lok Ma Chau, he was arrested. He was found to be in possession of a witness statement made to the police by the defendant on 5 November 2013. Other documents relating to the defendant, including a photocopy of his driver’s license and identity card were found in a search of Wong’s home.

17.  The defendant was arrested on his return to Hong Kong from the Mainland on 9 November 2013.

18.  On 4 November 2013 at 11:30 pm, the police located the defendant’s lights goods vehicle which had been set ablaze.  None of the stolen goods were found on the vehicle or nearby.

19.  In the phone calls between Wong and the defendant they had never been any mention of the purchase or use of a knife in the robbery nor had there been any mention of setting the defendants light goods vehicle ablaze.

Mitigation

20.  Mr Christopher Grounds Counsel for the defendant in his mitigation has properly referred me to the guideline case of Mo Kwong Sang [1981] HKLR 610 where the Court of Appeal laid down guidelines for armed robbery (with a knife or other dangerous weapons) and other aggravating factors which would enhance the starting point.  He has also referred to a number of cases of robbery as seen in his written “note on sentencing authorities.”  He submits that the facts of this robbery is not so serious although a knife was used and even though a knife was placed against the back of Yang’s neck, Yang did not suffer any injuries and no further force was used.  He submits that Yang was taken for a very short car journey after the declaration of robbery and dropped off soon after Wong and Fong boarded the LGV that contained the goods.  He accepts that this was an inside job committed by the defendant and therefore a breach of trust but that the facts of the present robbery does not warrant a starting point of 10 years’ imprisonment. 

21.  As a matter of background the defendant was convicted after trial by a jury on the same charge together with Wong in another trial (HCCC266 & 354/2014.)  Zervos J sentenced the defendant and Wong to 10 years’ imprisonment.  The defendant’s appeal against his conviction was allowed and the case was sent back for a re-trial.  Wong’s appeal against conviction was dismissed and Wong is serving a term of 10 years’ imprisonment.

22.  Mr Grounds submits that the sentence imposed by Zervos J was excessive and asks this court not to impose the same sentence relying on the authorities he has submitted and his submissions.  He submits a starting point of about 7-8 years is appropriate on the present facts. 

Discussion

23.  The case of Mo Kwong Sang laid down the sentencing guidelines for the offence of armed robbery (other than firearms).  In the present case a knife was used in the robbery.  It matters not that the defendant did not know that a knife would be used as this was a joint enterprise.  The appropriate starting point is therefore one of 5 years’ imprisonment.  There were other aggravating factors which warrant an enhancement to that starting point after trial.  There was physical violence used on Yang in that whilst in the vehicle his head was pressed downwards and a knife was placed against the back of his neck.  I accept that there were no injuries caused as a result. During this time the defendant was driven away captive in the lights goods vehicle and eventually pushed off.

24.  This abduction and treatment of him must have been a very frightening experience for Yang.  It warrants an enhancement of one year from the starting point.

25.  I have taken into account the Court of Appeal’s decision in HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137 where the court stated the focus of the offence of robbery was on force, the pecuniary loss suffered by the victim being a secondary sentencing consideration and it was not normally necessary in a case of robbery involving substantial property to further adjust the sentence by reference to the value of the stolen property.  In giving judgment for the court Tang V-P (as he then was) stated at para 13 of the judgment:

“furthermore, where a robbery involved substantial property, it usually also involved a gang of robbers and the use of weapon or force. As these are both aggravating factors it is normally unnecessary for the court to further adjust the sentence by reference to the value of stolen property.”

26.  In HKSAR v Lok Kin Chi CACC354/2007 Stuart-Moore V-P giving judgment for the Court of Appeal observed at paragraph 20:

“that it was not an aggravating feature of the case, calling for a specific enhancement of the sentence, that the police were unable to recover the goods which this gang had succeeded in stealing. The value of the goods stolen was part and parcel of the circumstances and, whether or not those goods were recovered, this was one of the features of the case which made a high starting point a proper one.”

27.  Having regard to the above, there was a group of robbers involved in a well -planned and orchestrated robbery aimed at stealing high value goods. This warrants a further one year’s enhancement. 

28.  It is clear from the facts of this case that the defendant was the instigator and the one who initiated the robbery.  He played a major role.  He had knowledge of the high value of goods that were carried in his lights goods vehicle.  Yang had expected to arrive at his destination safely and securely when he employed the services of Power-King.  The defendant had breached the trust of his employers and Yang in carrying out this daring robbery of Yang. The defendant had attempted in vain thereafter to deliberately mislead the police officers by making a false report that he was also one of the victims. This is a further aggravating factor to which I enhance the sentence by a further year.

29.  The resulting sentencing point is therefore one of 8 years’ imprisonment had the defendant been convicted after trial.

30.  I recognize the need for there to be parity in sentencing defendants who have committed the same offence.  However I distinguish this defendant’s case with his co-accused Wong principally on the basis that Wong’s appalling criminal record is a further serious aggravating factor calling for a further enhancement on the sentencing point.  Wong had 35 previous convictions of which 22 related to dishonesty at the time of his sentence.  The defendant is 33 years of age and has a clear record.  There is therefore no enhancement called for his record and there is therefore a difference between the sentence for the defendant and his co-accused Wong. 

Discount from sentencing point

31.  As a result of the appeal being allowed the Court of Appeal ordered the defendant be retried before another judge on a fresh indictment[1]. Upon the listing of the case for re-trial at the Court of First Instance the defendant indicated his plea of guilty, that was a plea at the first opportunity, before the listing judge.  Mr Grounds submits on this basis he should be awarded the full one third discount. 

32.  Where a defendant had contested his first trial and only pleaded guilty at a re-trial ordered after he had succeeded in his appeal against conviction, it is open to the court to withhold the customary one third discount see R v Ng Wing-Kwong CACC62/1995.  This, said Mayo JA, was a factor which could properly be weighed by the court.

33.  The Court of Appeal revisited the issue in HKSAR v Chui Chi Wat CACC490/99 Wong JA said:

“since the decision in R v Ng Wing Kwong in 1995, this court has on a number of occasions in recent years pronounced that a full one third discount is the norm rather than the exception for timely plea of guilty and it is only in exceptional circumstances that a lesser discount than one third is to be given …

The applicants pleaded guilty at the retrial and these cannot be said to be truly timely pleas. They were each given a discount of one quarter which is not an insubstantial discount. In these circumstances, we are not prepared and fit with the judge’s exercise of discretion.”

34.  Chui Chi Wat was consideredin the recent decision in HKSAR v NGO VAN NAM CACC 418/2014 and CACC327/2015 where the Court of Appeal considered discounts to be afforded to defendants’ for their pleas of guilty. 

35.  Mr Grounds sought to argue that the circumstances of this re- trial are different from the trial as the victim Yang is not on the list of witnesses in this re-trial and still the defendant pleaded guilty, therefore the defendant should be afforded the full one third discount.  I disagree.  It does not shy away from the fact that he had contested the first trial and this plea before me was not a timely plea of guilty.  The defendant in this case cannot be said to have entered a timely early plea of guilty.  He had pleaded not guilty in the first trial and was convicted.  There was the expense of a contested trial.

36.  Further although Yang is not listed as a witness in this re-trial, as can be seen in the summary of facts which the defendant admitted his co-accused Wong and Fong had given non-prejudicial statements against the defendant. Therefore in place of Yang there was the likelihood of his co-accused giving evidence for the prosecution. 

37.  As the defendant’s plea of guilty was not a timely plea the defendant is not entitled to the usual one third discount.  I shall afford him a 25% or one quarter discount.

38.  The sentencing point had the defendant been convicted after trial would have been one of 8 years’ imprisonment, giving him a 25% discount upon his plea of guilty the resulting sentence is one of 6 years’ imprisonment to which he shall so serve.