A HCCC 117/2014 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 117 OF 2014
C C
-----------------
D D
HKSAR
E v E
CHEUNG Chung-man
F F
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G G
Before: Deputy High Court Judge Woo
Date: 26 May 2014 at 10.57 am
H Present: Ms Lily Wong, SPP (Ag) of the Department of Justice, H
for HKSAR
I
Mr Wong Hing-wai, Newman, instructed by Li, Wong, I
Lam & W I Cheung, assigned by the Director of
Legal Aid, for the accused
J Offence: Attempted robbery (企圖搶劫罪) J
---------------------------------
K K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: The defendant, Cheung Chung-man, a 24-year-old young man,
M has pleaded guilty to a count of attempted robbery, contrary M
to section 10 of the Theft Ordinance, Cap 210, and section
159G of the Crimes Ordinance, Cap 200.
N N
The particulars of offence are that on 11 October 2013 at
O Shop B, Ground Floor, 38 to 40 Granville Road, Tsim Sha O
Tsui, Kowloon, in Hong Kong, the defendant attempted to rob
Law Chin-hang.
P P
The defendant has admitted the summary of facts prepared by
the prosecution. I will read it out first.
Q Q
At all material times, the defendant (“D”) was employed as a
R part time salesperson at Studio A Technology Limited, which R
was situated at Shop B, Ground Floor, 38 to 40 Granville
Road, Tsim Sha Tsui, Kowloon. The defendant had been
S working there since March 2013. S
T
On 10 October 2013, D made a request to his supervisor to T
change his work shift the following day so that he did not
have to go back to work until 6.30 pm. He claimed that he
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A had to go back to his university to pick up his diploma. A
His request was approved.
B At about 11.20 am on 11 October 2013, Law Chin-hang, that is B
PW1, aged 22, was the first person returning to the store.
After getting into the shop, he left the roller gate ajar so
C C
that other colleagues could enter the shop after him.
Subsequently, three other colleagues, Chan Wai-ka, PW2, aged
D 22, Yeung Ka-ki, PW3, aged 25, and Chan Ching-man, PW4, aged D
22, returned and they all started preparing the store for
business.
E E
At about 11.30 am, D suddenly entered the shop alone through
the roller gate that was left ajar. To disguise his
F F
identity, D was wearing a wig, a facemask and a pair of
sunglasses. He was also carrying a handbag. He approached
G PWs 1 to 3. D pointed a pistol-like object at them and G
ordered them to walk into the storeroom. PW4 was inside her
office at that time. She was also located by D and was
H indicated to go into the storeroom. H
I
At this point of time, PW2 started noticing that the robber I
looked like D. PW2 started giggling. D shouted at him and
then ordered all four of them to turn around. D then threw
J some plastic straps onto the floor. He demanded PW2 to use J
the plastic straps to tie up the hands of his colleagues.
PW2 did so and D eventually tied up PW2. At this juncture,
K Tong Nga-yan, PW5, aged 24, also returned to work and found K
out what was going on. She also was immediately tied up by
L D. L
D asked the group who the person in charge was. PW1 told D
M that he was. D then ordered PW1 to open the safe which was M
inside the storeroom. With his hands tied up, PW1 attempted
to enter the pass code. He was unable to enter the pass
N code correctly. After two failed attempts, D approached N
PW1, pointing the pistol-like object at the back of his
O head, cocking the hammer, and said to PW1: O
“I give you 10 more seconds. If you still can’t open
P it, I will open for you.” P
That means, according to the prosecution, opening the safe
Q Q
for PW1.
R PW1 was extremely terrified at this point. He attempted to R
enter the correct pass code one more time. He failed. This
triggered the sounding of the alarm, D took his handbag and
S immediately rushed out of the storeroom. At the same time S
PW1 managed to untie himself and chased after D. PW1 pulled
D to the floor and struggled with him. PWs 2 to 5 at this
T T
point also managed to free themselves and came to assist
PW1.
U U
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A During the struggle, D’s wig, facemask and sunglasses A
dropped. All PWs then discovered that the robber was in
fact their colleague. D was restrained until the arrival of
B the police. During the struggle, PW1 suffered minor B
injuries to his left palm and his right kneecap.
C C
D was arrested subsequently. Under caution he stated:
D “I had to repay a debt of $28,000 today, but I have no D
intention to rob. The gun, the facemask, the wig and
those bags are not mine. An unknown male asked me to
E put on the wig and facemask and use the gun to get E
valuables from the shop.”
F F
The pistol-like object was recovered from D’s handbag.
Forensic firearms examination was conducted on this object,
G but it was later found to be a spring-powered air gun G
capable of discharging 6 mm calibre plastic balls with
muzzle energy of les than 2 joules. The air gun, therefore,
H did not fall within the legal definition of “arms” under the H
Firearms and Ammunition Ordinance, Cap 238.
I I
Further, a pair of gloves was found inside D’s handbag. A
cutter blade was also found inside D’s trousers’ pocket.
J J
In the subsequently held video recorded interview, under
caution, D admitted to attempting to rob. He claimed that
K he was unable to pay back his credit card debt of $28,000. K
He decided to rob the shop as his bank kept calling him,
L asking him to repay his debt. As he worked in the store, he L
knew that cash was kept inside the safe. He bought the wig
from the night market in Mongkok and the air gun from a
M stationery shop in Tin Shui Wai a few days before the M
offence date. He put on the wig, facemask and sunglasses
inside the toilet at Tin Shui Wai MTR station and went to
N Tsim Sha Tsui by rail. After entering the shop, he pointed N
the air gun at his colleagues and had them tied up with
O plastic straps. O
He admitted to ordering PW1 to open the safe. He also
P admitted that he threatened PW1 by cocking the hammer of the P
air gun when PW1 failed twice to enter the correct pass
code. He fled when he heard the alarm sounding because he
Q Q
was frightened. He had not used the cutter blade found on
him during the offence. He was remorseful for his foolish
R act. R
CCTVs installed inside the shop captured the whole course of
S the offence. S
The characterisation of this case, according to the facts
T T
admitted, is robbery carried out with a pistol-like object,
an imitation firearm. Of course, it’s a failed robbery.
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A Relevant sentencing authorities can be found referred to in A
Cross and Cheung, Sentencing in Hong Kong, 6th Edition,
pages 723 to 724.
B B
In R v Yiu Tai Wing [1995] 1 HKC 837 the Court of Appeal
gave sentencing guidelines for robbery, drawing a
C C
distinction between the use of genuine and imitation
firearms. For robbery with an imitation firearm in a public
D place, the appropriate starting point is 10 years (see D
page 840 E to G).
E On the other hand, in HKSAR v On Ling [2005] 1 HKC 227, a E
case of a robbery where the applicant used a dummy weapon,
namely a roll of newspapers, pointing at a man’s stomach
F F
when declaring robbery at a bus station in Tai Po, and the
45-year-old victim fell to the ground out of fright,
G dropping his bag, which was taken by a co-defendant, the G
Court of Appeal held that the guidelines for armed robbery
were not appropriate and treated the circumstances as at the
H top of the tariff for unarmed robberies whose victims are H
frightened and considered a 4 years’ imprisonment starting
I
point appropriate, despite the authority of Mo Kwong Sang v I
R [1981] HKLR 610, which held that a robbery committed with
the display of a knife, without other aggravating features,
J attracts a starting point of 5 years’ imprisonment. The J
rationale can be found in the judgment at page 23F:
K “8. The issue is whether this case should be regarded K
as a robbery where a weapon was displayed,
L although it turned out to be no more than a prop. L
9. It is, of course, true that the victim had been
M frightened by the prop, but the fact remains that M
the roll of newspapers was not a weapon and did
not conceal one. The victim was never at risk of
N any physical harm from its use. In our view, if N
the same sentence is given, whether a knife is
O displayed or where a roll of newspapers is O
displayed, albeit as a dummy weapon, there would
be little disincentive to the actual use of a
P knife.” P
Counsel for the prosecution, Ms Wong, refers me to the
Q Q
Secretary for Justice v Lee Chun Ho, Jeef [2009] 6 HKC 471
where the respondent was charged with robbery and the using
R of an imitation firearm with intent to resist or prevent R
lawful arrest. The Court of Appeal held that the proper
starting point for the robbery should have been 10 years’
S imprisonment and for the use of imitation firearm should S
have been 6 years’ imprisonment. The court explained:
T T
“25. The Court of Appeal has consistently adopted a
starting point of 10 years for robbery involving
U the use of imitation firearms. U
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A A
26. In AG v Ng Hung Kei (unreported CAAR 12/1987),
the defendant pleaded guilty to two shop
B robberies using an imitation pistol on each B
occasion. It was held that a total sentence of
10 years’ imprisonment would have been
C C
appropriate, which was reduced to 8 years, as it
was a review.”
D D
27. In HKSAR v Huang Jianfeng (unreported CACC
145/2006), the defendant used an imitation
E firearm to commit two robberies. In the second E
robbery, threats to use an imitation firearm were
uttered. The Court of Appeal considered a
F F
starting point of 10 years’ imprisonment to be
appropriate for each of the two offences of
G robbery. G
28. In HKSAR v Mak Chi Ho [2008] HKCU 1042
H (unreported CACC 290/2007), the Court of Appeal H
approved a total sentence of 10 years’
I
imprisonment, on pleas of guilty for one robbery I
and one attempted robbery of convenience stores
with the use of imitation firearms.”
J J
I omit paragraphs 29 and 30.
K “31. We simply want to point out that 8 years and 6 K
months was adopted in Yu Tai Wing (supra)
L because, inter alia, the defendant (a serving L
police officer) ‘had completed 20 years of
unblemished service and had plainly acted
M completely out of character in doing what he M
did.’ The respondent, on the other hand, had
many previous convictions.
N N
32. The Court of Appeal in Yu Tai Wing (supra)
O actually approved a 10-year starting point for a O
single charge of robbery ‘where an opportunist
robber embarks upon a robbery alone with an
P imitation firearm in a public place and inflicts P
on injury on his victim.’
Q Q
It is to be noted that in Lee Chun Ho, Jeef, the case of On
Ling was not referred to. The reason seems that an
R imitation firearm was distinguished from a prop used in On R
Ling, although the prop could be misunderstood or
misconceived by victims as containing a sharp knife or even
S a firearm. Indeed, the 45-year-old male victim in On Ling S
was so frightened by the pointing of the roll of newspapers
at his stomach that he fell down.
T T
It might be argued that the rationale for adopting a lower
U starting point in On Ling seems to apply to the present U
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V V
A case. If the facts of this case are transposed into and A
substituted for the contents of paragraph 9 of On Ling’s
judgment which I have just cited, to demonstrate the
B applicability, it would read as follows: B
“It is, of course, true that the victims had been
C C
frightened by the prop, but the fact remains that the
pistol-like object was not a weapon and did not conceal
D one. The victims were never at risk of any physical D
harm from its use. In our view, if the same sentence
is given whether a knife is displayed or where a
E pistol-like object is displayed, albeit as a dummy E
weapon, there would be little disincentive to the
actual use of a knife.”
F F
The distinction between On Ling and the other cases cited
G seems to depend on whether the weapon or supposed weapon G
used in the robbery was a prop or a dummy weapon, as in On
Ling, or an imitation firearm as in the other authorities.
H I consider that the crux is whether the dummy weapon is a H
dummy knife or a dummy firearm.
I I
A dummy knife was, and to be properly treated as, not as
serious as a true knife, as pointed out in On Ling, but a
J dummy firearm would have much more serious consequences that J
can normally be brought about by a true firearm. The
present case should therefore be treated as under the
K umbrella or the authorities where normally a 10-year K
imprisonment starting point would be applicable.
L L
I now turn to the facts of the present case.
M The most serious aggravating feature is the pointing of the M
object at the back of the head of PW1, the victim, when the
defendant ordered him to open the safe, since PW1 had failed
N twice to key in the correct pass code. The threat was N
increased by or made more realistic with the cocking of the
O hammer of the air pistol. This must have put PW1 into O
fearing that he might be shot and die, which can be said to
be one’s most terrifying experience in life. That fear
P would seldom result from the use of a knife, dummy or P
actual.
Q Q
PW1 was told to try to key in the pass code again. This
third attempt also failed, which triggered the alarm that
R caused the defendant to flee. PW1 gave chase and was able R
to catch and subdue the defendant, suffering minor injuries
to his left palm and right kneecap in the process of the
S struggle. S
Another aggravating matter is that the defendant was trying
T T
to rob the shop in which he was working, having knowledge of
the working of the shop and where the money was kept. There
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V V
A was also a certain amount of preparation, such as buying the A
air pistol and a wig for his disguise.
B The mitigating factors in this case are that the attempted B
robbery took place entirely within the shop premises of
Studio Technology Limited when the shop was not yet open to
C C
the public. Only five members of the staff, as opposed to
members of the public, were present and affected. As
D counsel for the defendant, Mr Wong, submits, no risk to life D
or injury was possible of the public and LEA officers, law
enforcement agency officers. No violence was in fact used,
E despite the defendant holding the pistol-like object when E
giving instructions to the staff to move to particular
positions and to be tied up with the plastic straps.
F F
Moreover, the defendant had a cutter blade in his pocket, he
G did not resort to use it. According to his VRI, the video G
recorded interview, he explained that it was planned to use
the cutter blade to cut the adhesive tapes or the plastic
H straps used to wrap the colleagues’ arms after the robbery H
was completed. There is no evidence that he ever tried or
I
intended to use the cutter blade for any other purposes. I
The fact was, it was never produced or displayed and,
apparently, for avoiding personal injuries to his fellow
J colleagues which might be inflicted accidentally by a sharp J
blade, his intentions seemed to be come what may he would
not harm his colleagues.
K K
Since the robbery failed, nothing was lost and no proceeds
L of crime will need to be taken into account to assess the L
sentence.
M Mr Wong, counsel for the defendant, has provided the court M
with a box file of materials in aid of mitigation.
N First and foremost, I must say with surprise is that PW1, N
the victim of the offence, has written a letter asking
O leniency for the defendant. Although PW1 does not expressly O
say anything about the terrifying experience that he
underwent, he asks the court to deal with the defendant
P leniently and to give him a chance to turn a new leaf, P
describing the defendant as a hard working and positive
young man, dedicated and polite in serving customers, who
Q Q
would certainly contribute to society, and describing the
incident as a momentary lapse and stupidity.
R R
Three of the other four colleagues who were victims to the
acts of the defendant as described in the summary of facts,
S who would have been PW2, PW4 and PW5, but for the plea of S
guilty of the defendant, have all written letters to seek
leniency for the defendant.
T T
Apart from PW1’s description of the character of the
U defendant as a colleague, one or the other of these would-be U
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V V
A PWs, depicted the defendant as helpful, unassuming and A
simple, making people happy and always prepared to help
others, and that the incident was childish and laughable.
B They, in unison, ask the court to give the defendant a B
chance. It seems to me that they, as victims in the
attempted robbery, have all forgiven what the defendant did
C C
to them.
D Mr Wong has told me that PW3 has not written because she was D
a newcomer in the company and did not know the defendant
long enough to be able to say anything meaningful about him.
E E
Moreover, there are letters from other colleagues who were
not involved in the incident. They described the defendant
F F
as an extremely helpful, humorous, kind, humble and happy
person. They were greatly distressed by learning of the
G incident. Apart from seeking leniency for him from the G
court, they would like to let him know that they have not
abandoned him. One letter stresses that the defendant is
H not a bad person or else none of his former colleagues would H
have written to urge the court to deal with him lightly.
I I
In the eyes of the colleagues, despite his wrong deed, the
defendant is not a bad person, but one who has gone astray
J momentarily. The defendant will think carefully and reform J
himself, like when children have done something wrong, they
are always given a chance to reform and although the
K defendant has done wrong this time, he hopefully will not be K
abandoned by or eliminated from society. They entreat the
L court to give him a chance to turn a new leaf. L
The defendant’s teachers in the City University of Hong
M Kong, eight of them, have written in to describe how shocked M
and saddened they were when learning his involvement in this
grave crime. They believed that it was a lapse of judgment
N and a one-time offence committed by this friendly and N
helpful person who had served as the president of the
O Information Systems Department’s student society and O
organised many meaningful events.
P A social worker of the Hong Kong Federation of Youth Clubs P
has also written to ask the court to pass a lenient sentence
on the defendant. She was surprised and saddened by the
Q Q
event which she learned with disbelief. She described the
defendant as a person who persevered with hard work after
R failures in academic examinations and was successful in R
gaining entry into a university. The defendant also
participated in voluntary work in helping the disadvantaged
S or less advantaged and was praised by many of those whom he S
had helped as a true and loving friend. Two certificates of
appreciation, both dated 30 January 2010, for two facets of
T T
the defendant’s voluntary community work, and a certificate
dated November 2010 for his participation in a charity
U walkathon, have been issued by this federation. U
CRT35/26.5.2014/FM 8 HCCC 117/2014/Sentence
V V
A A
Another lot of letters are written by his family members,
including his parents and siblings. His girlfriend and her
B mother also wrote. B
What is most touching is, of course, the letter from the
C C
parents. Apparently, not too educated, the father writes to
say that the defendant is a filial son, a hardworking
D student, a person willing to serve his fellow university D
colleagues and to help others less advantaged in society.
The father blames himself for not knowing timely the
E financial problems, with pressure exerted by lenders, faced E
by the defendant who did not divulge them to the parents so
as not to worry or trouble them, or the parents would
F F
certainly have thought of a way to assist so that this
unfortunate and foolish event would never have occurred.
G G
The parents begged the court to exercise its discretion to
pass a lenient sentence, for the defendant is still young
H and, if given a chance, would contribute to society and look H
after the parents in their old age, who have no occupation
I
and are suffering from the usual illnesses of the elderly. I
The defendant wrote to them expressing his remorse and
J sorrow. He explained that it was undergoing two years of J
increasing amount of credit card loans that resulted in the
institutions pressurising him which compelled him to resort
K to what he did foolishly because he did not want to trouble K
or worry his family. He apologised profusely and asked the
L parents to take good care of themselves so that he would be L
able to return in years’ time to look after them. He
repented what he had done at the spur of the moment without
M consulting with family members about his financial M
difficulties. He was also apologetic for the parents paying
him visits in jail and asked them not to spend any money in
N buying things for him. Most importantly, he wished his N
parents not to worry about him and look after themselves
O well. O
The defendant also wrote to his sister to ask her to send
P what he wrote to his former colleagues because he was not P
allowed to write to them. What he wanted to convey to the
former colleagues was his apologies for betraying their
Q Q
trust in him, for causing them trouble and for affecting
them by what he did. He had been informed that the former
R colleagues were agreeable to write letters to plead leniency R
for him for which he was not only grateful, but greatly
moved.
S S
The defendant’s girlfriend was a fellow student in the
Department of Information Systems of City U. She describes
T T
the defendant as a responsible person with organisational
skills and outstanding leadership qualities who worked hard,
U unselfishly, for departmental affairs. He was helpful to U
CRT35/26.5.2014/FM 9 HCCC 117/2014/Sentence
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A others and was a good listener, reliable and well trusted by A
fellow students. The incident was learned by those who knew
the defendant with deep worry and distress. She will
B continue to be by his side and give him encouragement. She B
believed that the incident was but a momentary impulse that
was committed with a view not to worry his family. She
C C
seeks a chance for him.
D There are also 19 letters from the defendant’s schoolmates D
in City U who have known him for two, three, four or many
years. He was commonly described as a diligent, faithful,
E sincere, reliable, helpful, good conduct, kind and loving E
person, with a strong sense of responsibility and integrity
and is always respectful and considerate to his teachers and
F F
fellow students. A number of them also expressed their
pleasure and appreciation in working under the defendant’s
G presidency of the student society. They were surprised to G
learn of his involvement in the present offence and
considered that it was caused by his lack of maturity, as
H well as a childish and impetuous behaviour. They asked the H
court to treat him with mercy.
I I
There are another nine letters from his personal friends.
They all praise the defendant as a true friend, always so
J prepared to help and so instinctively helpful. What is J
notable is that there is a noodle shop owner who got to know
the defendant in the days when the defendant had noodles in
K his shop when studying hard for examinations. This owner K
used to talk to the defendant and got the impression that
L this was a good and hardworking student. He puts in a letter L
to seek leniency for the young man.
M The defendant had no criminal record. M
It appears to me that all those who knew the defendant
N praise him as a hardworking student, a young man with an N
aspiration to get himself into university, as a colleague
O that was incessantly and unselfishly helpful, as a true O
friend with good listening ears and from whom you can always
expect encouragement, etc. The incident was clearly an act
P out of character and that is why, words such “surprised,” P
“shocked” and “disbelief” are used in the letters.
Q Q
Mr Wong tells me that the credit card debts of the
defendant, which caused him foolishly to have committed this
R offence, were incurred and accumulated for paying for R
functions when the defendant was running for the presidency
of the student society. He got carried away and was
S spending much more over budget. The money was not spent for S
his own personal pleasure in the sense of having drinks in
bars and buying other expensive items.
T T
What is most important as a mitigating factor that offsets
U some of the aggravating features’ effect of putting the U
CRT35/26.5.2014/FM 10 HCCC 117/2014/Sentence
V V
A pistol-like object against the victim PW1’s head, is the A
fact that PW1 has written in to urge the court to be lenient
on the defendant. He and most of all other former
B colleagues in the shop have apparently forgiven him and I B
think the forgiveness is genuine because it has been
followed with the active act of writing in for mitigation.
C C
In all the circumstances of the case, and fully taking into
D account the mitigating factors as well as the wishes of D
those who have written mitigating letters to this court, I
consider that a starting point of 7 years’ imprisonment is
E appropriate. This is the most lenient the court can get E
given the seriousness of the offence and the authorities in
sentencing for robbery with the use of an imitation firearm.
F F
The defendant is entitled to the usual discount of one third
G for his guilty plea, true remorse and clear record. G
In the result, the sentence I pass on him is imprisonment
H for 4 years and 8 months. H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT35/26.5.2014/FM 11 HCCC 117/2014/Sentence
V V
A HCCC 117/2014 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 117 OF 2014
C C
-----------------
D D
HKSAR
E v E
CHEUNG Chung-man
F F
------------------
G G
Before: Deputy High Court Judge Woo
Date: 26 May 2014 at 10.57 am
H Present: Ms Lily Wong, SPP (Ag) of the Department of Justice, H
for HKSAR
I
Mr Wong Hing-wai, Newman, instructed by Li, Wong, I
Lam & W I Cheung, assigned by the Director of
Legal Aid, for the accused
J Offence: Attempted robbery (企圖搶劫罪) J
---------------------------------
K K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: The defendant, Cheung Chung-man, a 24-year-old young man,
M has pleaded guilty to a count of attempted robbery, contrary M
to section 10 of the Theft Ordinance, Cap 210, and section
159G of the Crimes Ordinance, Cap 200.
N N
The particulars of offence are that on 11 October 2013 at
O Shop B, Ground Floor, 38 to 40 Granville Road, Tsim Sha O
Tsui, Kowloon, in Hong Kong, the defendant attempted to rob
Law Chin-hang.
P P
The defendant has admitted the summary of facts prepared by
the prosecution. I will read it out first.
Q Q
At all material times, the defendant (“D”) was employed as a
R part time salesperson at Studio A Technology Limited, which R
was situated at Shop B, Ground Floor, 38 to 40 Granville
Road, Tsim Sha Tsui, Kowloon. The defendant had been
S working there since March 2013. S
T
On 10 October 2013, D made a request to his supervisor to T
change his work shift the following day so that he did not
have to go back to work until 6.30 pm. He claimed that he
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V V
A had to go back to his university to pick up his diploma. A
His request was approved.
B At about 11.20 am on 11 October 2013, Law Chin-hang, that is B
PW1, aged 22, was the first person returning to the store.
After getting into the shop, he left the roller gate ajar so
C C
that other colleagues could enter the shop after him.
Subsequently, three other colleagues, Chan Wai-ka, PW2, aged
D 22, Yeung Ka-ki, PW3, aged 25, and Chan Ching-man, PW4, aged D
22, returned and they all started preparing the store for
business.
E E
At about 11.30 am, D suddenly entered the shop alone through
the roller gate that was left ajar. To disguise his
F F
identity, D was wearing a wig, a facemask and a pair of
sunglasses. He was also carrying a handbag. He approached
G PWs 1 to 3. D pointed a pistol-like object at them and G
ordered them to walk into the storeroom. PW4 was inside her
office at that time. She was also located by D and was
H indicated to go into the storeroom. H
I
At this point of time, PW2 started noticing that the robber I
looked like D. PW2 started giggling. D shouted at him and
then ordered all four of them to turn around. D then threw
J some plastic straps onto the floor. He demanded PW2 to use J
the plastic straps to tie up the hands of his colleagues.
PW2 did so and D eventually tied up PW2. At this juncture,
K Tong Nga-yan, PW5, aged 24, also returned to work and found K
out what was going on. She also was immediately tied up by
L D. L
D asked the group who the person in charge was. PW1 told D
M that he was. D then ordered PW1 to open the safe which was M
inside the storeroom. With his hands tied up, PW1 attempted
to enter the pass code. He was unable to enter the pass
N code correctly. After two failed attempts, D approached N
PW1, pointing the pistol-like object at the back of his
O head, cocking the hammer, and said to PW1: O
“I give you 10 more seconds. If you still can’t open
P it, I will open for you.” P
That means, according to the prosecution, opening the safe
Q Q
for PW1.
R PW1 was extremely terrified at this point. He attempted to R
enter the correct pass code one more time. He failed. This
triggered the sounding of the alarm, D took his handbag and
S immediately rushed out of the storeroom. At the same time S
PW1 managed to untie himself and chased after D. PW1 pulled
D to the floor and struggled with him. PWs 2 to 5 at this
T T
point also managed to free themselves and came to assist
PW1.
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A During the struggle, D’s wig, facemask and sunglasses A
dropped. All PWs then discovered that the robber was in
fact their colleague. D was restrained until the arrival of
B the police. During the struggle, PW1 suffered minor B
injuries to his left palm and his right kneecap.
C C
D was arrested subsequently. Under caution he stated:
D “I had to repay a debt of $28,000 today, but I have no D
intention to rob. The gun, the facemask, the wig and
those bags are not mine. An unknown male asked me to
E put on the wig and facemask and use the gun to get E
valuables from the shop.”
F F
The pistol-like object was recovered from D’s handbag.
Forensic firearms examination was conducted on this object,
G but it was later found to be a spring-powered air gun G
capable of discharging 6 mm calibre plastic balls with
muzzle energy of les than 2 joules. The air gun, therefore,
H did not fall within the legal definition of “arms” under the H
Firearms and Ammunition Ordinance, Cap 238.
I I
Further, a pair of gloves was found inside D’s handbag. A
cutter blade was also found inside D’s trousers’ pocket.
J J
In the subsequently held video recorded interview, under
caution, D admitted to attempting to rob. He claimed that
K he was unable to pay back his credit card debt of $28,000. K
He decided to rob the shop as his bank kept calling him,
L asking him to repay his debt. As he worked in the store, he L
knew that cash was kept inside the safe. He bought the wig
from the night market in Mongkok and the air gun from a
M stationery shop in Tin Shui Wai a few days before the M
offence date. He put on the wig, facemask and sunglasses
inside the toilet at Tin Shui Wai MTR station and went to
N Tsim Sha Tsui by rail. After entering the shop, he pointed N
the air gun at his colleagues and had them tied up with
O plastic straps. O
He admitted to ordering PW1 to open the safe. He also
P admitted that he threatened PW1 by cocking the hammer of the P
air gun when PW1 failed twice to enter the correct pass
code. He fled when he heard the alarm sounding because he
Q Q
was frightened. He had not used the cutter blade found on
him during the offence. He was remorseful for his foolish
R act. R
CCTVs installed inside the shop captured the whole course of
S the offence. S
The characterisation of this case, according to the facts
T T
admitted, is robbery carried out with a pistol-like object,
an imitation firearm. Of course, it’s a failed robbery.
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A Relevant sentencing authorities can be found referred to in A
Cross and Cheung, Sentencing in Hong Kong, 6th Edition,
pages 723 to 724.
B B
In R v Yiu Tai Wing [1995] 1 HKC 837 the Court of Appeal
gave sentencing guidelines for robbery, drawing a
C C
distinction between the use of genuine and imitation
firearms. For robbery with an imitation firearm in a public
D place, the appropriate starting point is 10 years (see D
page 840 E to G).
E On the other hand, in HKSAR v On Ling [2005] 1 HKC 227, a E
case of a robbery where the applicant used a dummy weapon,
namely a roll of newspapers, pointing at a man’s stomach
F F
when declaring robbery at a bus station in Tai Po, and the
45-year-old victim fell to the ground out of fright,
G dropping his bag, which was taken by a co-defendant, the G
Court of Appeal held that the guidelines for armed robbery
were not appropriate and treated the circumstances as at the
H top of the tariff for unarmed robberies whose victims are H
frightened and considered a 4 years’ imprisonment starting
I
point appropriate, despite the authority of Mo Kwong Sang v I
R [1981] HKLR 610, which held that a robbery committed with
the display of a knife, without other aggravating features,
J attracts a starting point of 5 years’ imprisonment. The J
rationale can be found in the judgment at page 23F:
K “8. The issue is whether this case should be regarded K
as a robbery where a weapon was displayed,
L although it turned out to be no more than a prop. L
9. It is, of course, true that the victim had been
M frightened by the prop, but the fact remains that M
the roll of newspapers was not a weapon and did
not conceal one. The victim was never at risk of
N any physical harm from its use. In our view, if N
the same sentence is given, whether a knife is
O displayed or where a roll of newspapers is O
displayed, albeit as a dummy weapon, there would
be little disincentive to the actual use of a
P knife.” P
Counsel for the prosecution, Ms Wong, refers me to the
Q Q
Secretary for Justice v Lee Chun Ho, Jeef [2009] 6 HKC 471
where the respondent was charged with robbery and the using
R of an imitation firearm with intent to resist or prevent R
lawful arrest. The Court of Appeal held that the proper
starting point for the robbery should have been 10 years’
S imprisonment and for the use of imitation firearm should S
have been 6 years’ imprisonment. The court explained:
T T
“25. The Court of Appeal has consistently adopted a
starting point of 10 years for robbery involving
U the use of imitation firearms. U
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A A
26. In AG v Ng Hung Kei (unreported CAAR 12/1987),
the defendant pleaded guilty to two shop
B robberies using an imitation pistol on each B
occasion. It was held that a total sentence of
10 years’ imprisonment would have been
C C
appropriate, which was reduced to 8 years, as it
was a review.”
D D
27. In HKSAR v Huang Jianfeng (unreported CACC
145/2006), the defendant used an imitation
E firearm to commit two robberies. In the second E
robbery, threats to use an imitation firearm were
uttered. The Court of Appeal considered a
F F
starting point of 10 years’ imprisonment to be
appropriate for each of the two offences of
G robbery. G
28. In HKSAR v Mak Chi Ho [2008] HKCU 1042
H (unreported CACC 290/2007), the Court of Appeal H
approved a total sentence of 10 years’
I
imprisonment, on pleas of guilty for one robbery I
and one attempted robbery of convenience stores
with the use of imitation firearms.”
J J
I omit paragraphs 29 and 30.
K “31. We simply want to point out that 8 years and 6 K
months was adopted in Yu Tai Wing (supra)
L because, inter alia, the defendant (a serving L
police officer) ‘had completed 20 years of
unblemished service and had plainly acted
M completely out of character in doing what he M
did.’ The respondent, on the other hand, had
many previous convictions.
N N
32. The Court of Appeal in Yu Tai Wing (supra)
O actually approved a 10-year starting point for a O
single charge of robbery ‘where an opportunist
robber embarks upon a robbery alone with an
P imitation firearm in a public place and inflicts P
on injury on his victim.’
Q Q
It is to be noted that in Lee Chun Ho, Jeef, the case of On
Ling was not referred to. The reason seems that an
R imitation firearm was distinguished from a prop used in On R
Ling, although the prop could be misunderstood or
misconceived by victims as containing a sharp knife or even
S a firearm. Indeed, the 45-year-old male victim in On Ling S
was so frightened by the pointing of the roll of newspapers
at his stomach that he fell down.
T T
It might be argued that the rationale for adopting a lower
U starting point in On Ling seems to apply to the present U
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A case. If the facts of this case are transposed into and A
substituted for the contents of paragraph 9 of On Ling’s
judgment which I have just cited, to demonstrate the
B applicability, it would read as follows: B
“It is, of course, true that the victims had been
C C
frightened by the prop, but the fact remains that the
pistol-like object was not a weapon and did not conceal
D one. The victims were never at risk of any physical D
harm from its use. In our view, if the same sentence
is given whether a knife is displayed or where a
E pistol-like object is displayed, albeit as a dummy E
weapon, there would be little disincentive to the
actual use of a knife.”
F F
The distinction between On Ling and the other cases cited
G seems to depend on whether the weapon or supposed weapon G
used in the robbery was a prop or a dummy weapon, as in On
Ling, or an imitation firearm as in the other authorities.
H I consider that the crux is whether the dummy weapon is a H
dummy knife or a dummy firearm.
I I
A dummy knife was, and to be properly treated as, not as
serious as a true knife, as pointed out in On Ling, but a
J dummy firearm would have much more serious consequences that J
can normally be brought about by a true firearm. The
present case should therefore be treated as under the
K umbrella or the authorities where normally a 10-year K
imprisonment starting point would be applicable.
L L
I now turn to the facts of the present case.
M The most serious aggravating feature is the pointing of the M
object at the back of the head of PW1, the victim, when the
defendant ordered him to open the safe, since PW1 had failed
N twice to key in the correct pass code. The threat was N
increased by or made more realistic with the cocking of the
O hammer of the air pistol. This must have put PW1 into O
fearing that he might be shot and die, which can be said to
be one’s most terrifying experience in life. That fear
P would seldom result from the use of a knife, dummy or P
actual.
Q Q
PW1 was told to try to key in the pass code again. This
third attempt also failed, which triggered the alarm that
R caused the defendant to flee. PW1 gave chase and was able R
to catch and subdue the defendant, suffering minor injuries
to his left palm and right kneecap in the process of the
S struggle. S
Another aggravating matter is that the defendant was trying
T T
to rob the shop in which he was working, having knowledge of
the working of the shop and where the money was kept. There
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A was also a certain amount of preparation, such as buying the A
air pistol and a wig for his disguise.
B The mitigating factors in this case are that the attempted B
robbery took place entirely within the shop premises of
Studio Technology Limited when the shop was not yet open to
C C
the public. Only five members of the staff, as opposed to
members of the public, were present and affected. As
D counsel for the defendant, Mr Wong, submits, no risk to life D
or injury was possible of the public and LEA officers, law
enforcement agency officers. No violence was in fact used,
E despite the defendant holding the pistol-like object when E
giving instructions to the staff to move to particular
positions and to be tied up with the plastic straps.
F F
Moreover, the defendant had a cutter blade in his pocket, he
G did not resort to use it. According to his VRI, the video G
recorded interview, he explained that it was planned to use
the cutter blade to cut the adhesive tapes or the plastic
H straps used to wrap the colleagues’ arms after the robbery H
was completed. There is no evidence that he ever tried or
I
intended to use the cutter blade for any other purposes. I
The fact was, it was never produced or displayed and,
apparently, for avoiding personal injuries to his fellow
J colleagues which might be inflicted accidentally by a sharp J
blade, his intentions seemed to be come what may he would
not harm his colleagues.
K K
Since the robbery failed, nothing was lost and no proceeds
L of crime will need to be taken into account to assess the L
sentence.
M Mr Wong, counsel for the defendant, has provided the court M
with a box file of materials in aid of mitigation.
N First and foremost, I must say with surprise is that PW1, N
the victim of the offence, has written a letter asking
O leniency for the defendant. Although PW1 does not expressly O
say anything about the terrifying experience that he
underwent, he asks the court to deal with the defendant
P leniently and to give him a chance to turn a new leaf, P
describing the defendant as a hard working and positive
young man, dedicated and polite in serving customers, who
Q Q
would certainly contribute to society, and describing the
incident as a momentary lapse and stupidity.
R R
Three of the other four colleagues who were victims to the
acts of the defendant as described in the summary of facts,
S who would have been PW2, PW4 and PW5, but for the plea of S
guilty of the defendant, have all written letters to seek
leniency for the defendant.
T T
Apart from PW1’s description of the character of the
U defendant as a colleague, one or the other of these would-be U
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V V
A PWs, depicted the defendant as helpful, unassuming and A
simple, making people happy and always prepared to help
others, and that the incident was childish and laughable.
B They, in unison, ask the court to give the defendant a B
chance. It seems to me that they, as victims in the
attempted robbery, have all forgiven what the defendant did
C C
to them.
D Mr Wong has told me that PW3 has not written because she was D
a newcomer in the company and did not know the defendant
long enough to be able to say anything meaningful about him.
E E
Moreover, there are letters from other colleagues who were
not involved in the incident. They described the defendant
F F
as an extremely helpful, humorous, kind, humble and happy
person. They were greatly distressed by learning of the
G incident. Apart from seeking leniency for him from the G
court, they would like to let him know that they have not
abandoned him. One letter stresses that the defendant is
H not a bad person or else none of his former colleagues would H
have written to urge the court to deal with him lightly.
I I
In the eyes of the colleagues, despite his wrong deed, the
defendant is not a bad person, but one who has gone astray
J momentarily. The defendant will think carefully and reform J
himself, like when children have done something wrong, they
are always given a chance to reform and although the
K defendant has done wrong this time, he hopefully will not be K
abandoned by or eliminated from society. They entreat the
L court to give him a chance to turn a new leaf. L
The defendant’s teachers in the City University of Hong
M Kong, eight of them, have written in to describe how shocked M
and saddened they were when learning his involvement in this
grave crime. They believed that it was a lapse of judgment
N and a one-time offence committed by this friendly and N
helpful person who had served as the president of the
O Information Systems Department’s student society and O
organised many meaningful events.
P A social worker of the Hong Kong Federation of Youth Clubs P
has also written to ask the court to pass a lenient sentence
on the defendant. She was surprised and saddened by the
Q Q
event which she learned with disbelief. She described the
defendant as a person who persevered with hard work after
R failures in academic examinations and was successful in R
gaining entry into a university. The defendant also
participated in voluntary work in helping the disadvantaged
S or less advantaged and was praised by many of those whom he S
had helped as a true and loving friend. Two certificates of
appreciation, both dated 30 January 2010, for two facets of
T T
the defendant’s voluntary community work, and a certificate
dated November 2010 for his participation in a charity
U walkathon, have been issued by this federation. U
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V V
A A
Another lot of letters are written by his family members,
including his parents and siblings. His girlfriend and her
B mother also wrote. B
What is most touching is, of course, the letter from the
C C
parents. Apparently, not too educated, the father writes to
say that the defendant is a filial son, a hardworking
D student, a person willing to serve his fellow university D
colleagues and to help others less advantaged in society.
The father blames himself for not knowing timely the
E financial problems, with pressure exerted by lenders, faced E
by the defendant who did not divulge them to the parents so
as not to worry or trouble them, or the parents would
F F
certainly have thought of a way to assist so that this
unfortunate and foolish event would never have occurred.
G G
The parents begged the court to exercise its discretion to
pass a lenient sentence, for the defendant is still young
H and, if given a chance, would contribute to society and look H
after the parents in their old age, who have no occupation
I
and are suffering from the usual illnesses of the elderly. I
The defendant wrote to them expressing his remorse and
J sorrow. He explained that it was undergoing two years of J
increasing amount of credit card loans that resulted in the
institutions pressurising him which compelled him to resort
K to what he did foolishly because he did not want to trouble K
or worry his family. He apologised profusely and asked the
L parents to take good care of themselves so that he would be L
able to return in years’ time to look after them. He
repented what he had done at the spur of the moment without
M consulting with family members about his financial M
difficulties. He was also apologetic for the parents paying
him visits in jail and asked them not to spend any money in
N buying things for him. Most importantly, he wished his N
parents not to worry about him and look after themselves
O well. O
The defendant also wrote to his sister to ask her to send
P what he wrote to his former colleagues because he was not P
allowed to write to them. What he wanted to convey to the
former colleagues was his apologies for betraying their
Q Q
trust in him, for causing them trouble and for affecting
them by what he did. He had been informed that the former
R colleagues were agreeable to write letters to plead leniency R
for him for which he was not only grateful, but greatly
moved.
S S
The defendant’s girlfriend was a fellow student in the
Department of Information Systems of City U. She describes
T T
the defendant as a responsible person with organisational
skills and outstanding leadership qualities who worked hard,
U unselfishly, for departmental affairs. He was helpful to U
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A others and was a good listener, reliable and well trusted by A
fellow students. The incident was learned by those who knew
the defendant with deep worry and distress. She will
B continue to be by his side and give him encouragement. She B
believed that the incident was but a momentary impulse that
was committed with a view not to worry his family. She
C C
seeks a chance for him.
D There are also 19 letters from the defendant’s schoolmates D
in City U who have known him for two, three, four or many
years. He was commonly described as a diligent, faithful,
E sincere, reliable, helpful, good conduct, kind and loving E
person, with a strong sense of responsibility and integrity
and is always respectful and considerate to his teachers and
F F
fellow students. A number of them also expressed their
pleasure and appreciation in working under the defendant’s
G presidency of the student society. They were surprised to G
learn of his involvement in the present offence and
considered that it was caused by his lack of maturity, as
H well as a childish and impetuous behaviour. They asked the H
court to treat him with mercy.
I I
There are another nine letters from his personal friends.
They all praise the defendant as a true friend, always so
J prepared to help and so instinctively helpful. What is J
notable is that there is a noodle shop owner who got to know
the defendant in the days when the defendant had noodles in
K his shop when studying hard for examinations. This owner K
used to talk to the defendant and got the impression that
L this was a good and hardworking student. He puts in a letter L
to seek leniency for the young man.
M The defendant had no criminal record. M
It appears to me that all those who knew the defendant
N praise him as a hardworking student, a young man with an N
aspiration to get himself into university, as a colleague
O that was incessantly and unselfishly helpful, as a true O
friend with good listening ears and from whom you can always
expect encouragement, etc. The incident was clearly an act
P out of character and that is why, words such “surprised,” P
“shocked” and “disbelief” are used in the letters.
Q Q
Mr Wong tells me that the credit card debts of the
defendant, which caused him foolishly to have committed this
R offence, were incurred and accumulated for paying for R
functions when the defendant was running for the presidency
of the student society. He got carried away and was
S spending much more over budget. The money was not spent for S
his own personal pleasure in the sense of having drinks in
bars and buying other expensive items.
T T
What is most important as a mitigating factor that offsets
U some of the aggravating features’ effect of putting the U
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V V
A pistol-like object against the victim PW1’s head, is the A
fact that PW1 has written in to urge the court to be lenient
on the defendant. He and most of all other former
B colleagues in the shop have apparently forgiven him and I B
think the forgiveness is genuine because it has been
followed with the active act of writing in for mitigation.
C C
In all the circumstances of the case, and fully taking into
D account the mitigating factors as well as the wishes of D
those who have written mitigating letters to this court, I
consider that a starting point of 7 years’ imprisonment is
E appropriate. This is the most lenient the court can get E
given the seriousness of the offence and the authorities in
sentencing for robbery with the use of an imitation firearm.
F F
The defendant is entitled to the usual discount of one third
G for his guilty plea, true remorse and clear record. G
In the result, the sentence I pass on him is imprisonment
H for 4 years and 8 months. H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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