HCCC316/2020 HKSAR v. CHU KING-SHING, DANNY - LawHero
HCCC316/2020
高等法院（刑事）Barnes J15/4/2021[2021] HKCFI 1268
HCCC316/2020
A HCCC 316/2020 A
[2021] HKCFI 1268
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 316 OF 2020
D ----------------- D
HKSAR
E E
v
F F
Chu King-shing, Danny
G ----------------- G
Before: Hon Barnes J
H Date: 16 April 2021 at 10.30 am H
Present: Mr Cheung Man-kwan Bobby, SPP of the Department of
I
Justice, for HKSAR I
Mr Bernard Yuen, instructed by Johnnie Yam, Jacky
Lee & Co, assigned by DLA, for the accused
J Offence: (1) Robbery (搶劫罪) J
(2) Carrying an imitation firearm with intent to commit
an arrestable offence (攜帶仿製火器意圖犯可逮捕的罪行)
K K
---------------------------------
L L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
N COURT: The defendant, Chu King-shing, Danny, was charged with N
the following two charges. One, robbery, contrary to
section 10 of the Theft Ordinance, Chapter 210, that is
O Count 1, and carrying an imitation firearm with intent to O
commit an arrestable offence, contrary to section
18(1) and (3) of the Firearms and Ammunition Ordinance,
P Chapter 238, and that is Count 2. P
Q The defendant pleaded guilty before a magistrate and was Q
committed to the Court of First Instance of the High Court
for sentence.
R R
Admitted Facts
S S
At around 10 pm on 27 January 2020, Mr Ng is the victim. He
was a male aged 76 at the time, an employee of the Chevron
T Hong Kong Company Limited. He returned for the night shift T
duty at the Caltex Petrol Filling Station at 285 Gloucester
Road, Causeway bay. He was the only staff on duty that
U U
CRT22/16.4.2021/JC 1 HCCC 316/2020(1)/Sentence
V V
A night, and he checked correct the $2,000 of spare cash in A
the cashier machine.
B At around 12.23 am on 28 January 2020, the victim, PW1, was B
at the convenience store in the Caltex Petrol Station. At
the time, a man in dark clothing later known to be the
C C
defendant, wearing also a black mask, came into the petrol
station. He walked close to the victim and declared robbery
D and the victim saw that the defendant was holding a black D
object appearing to be a handgun in his right hand pointing
at the victim. Defendant then put the handgun object back
E into his right pants’ pocket and told the victim to take out E
all the money. The victim then opened the cashier machine
and the defendant took money away from the box on the left
F F
side, where the $100 banknotes were kept. The defendant
then left the petrol station.
G G
The victim reported to the police. According to this
victim, the company was insured for the loss and the amount
H lost was later confirmed to be $1,100. H
I
The police later arrived and checked the CCTV footage of the I
petrol station and it revealed that about eight minutes
earlier before the robbery, a person wearing the same
J clothing as the defendant had come to purchase something. J
Then on 13 February 2020, a team of police officers
K conducted an anti-robbery operation in the Wan Chai area. K
At around 10.54 pm, a police officer in plain clothes
L observed the defendant to be of similar appearance of the L
suspect who robbed the Caltex Petrol Station on 28 January
2020 and this police officer then was walking along Lockhart
M Road. So he kept the defendant under observation. M
The defendant was seen putting on a black mask and a pair of
N black gloves at Wan Chai Road and continued to walk and N
turned onto Morrison Hill Road, and there this plainclothes
O police officer saw there was a police vehicle parked at No O
23 Morrison Hill Road and he observed the defendant walking
faster than before, and turned into Lap Tak Lane, and then
P eventually the defendant went to Oi Kwan Road. P
So at Oi Kwan Road, the police officers intercepted the
Q Q
defendant, and since the defendant was suspected to be in
possession of a firearm, so the officers had their pistols
R ready. They subdued the defendant, a search was conducted R
and a black coloured 17-centimetre-long object appearing to
be an airgun, that is Exhibit 1, was found in the
S defendant’s left jacket’s pocket. S
Under inquiry, the defendant admitted that he committed the
T T
robbery on 28 January 2020 at the Caltex Petrol Station and
he was arrested. Under caution, the defendant admitted
U U
CRT22/16.4.2021/JC 2 HCCC 316/2020(1)/Sentence
V V
A robbing the petrol station on that day, 28 January, for A
HK$600.
B The defendant further admitted that he was on his way to the B
petrol station at Canal Road to rob again as he only robbed
$600 last time, but he walked away as he saw a police
C C
vehicle. So the defendant was arrested and under caution he
admitted the gun was a fake one and he knew he needed to pay
D for his actions. The cautioned admissions were D
post-recorded in the police notebook and signed by the
defendant as acknowledgement.
E E
The item, Exhibit 1, was subsequently examined by a firearm
expert, who found that Exhibit 1 to be consisted of an
F F
airgun and a magazine. The airgun was a spring-powered
airgun designed to discharge 6 millimetre calibre plastic
G balls and was marked with the words “made in Philippines”. G
This airgun was not in working order due to its blocked
H barrel and no test shooting derivation of muzzle energy H
could be conducted. As to the magazine, it was suitable to
I
be inserted in the magazine well for the above airgun, and I
it was to store 6 millimetre calibre plastic balls.
J In cautioned video-recorded interviews with the defendant, J
the defendant admitted among other things that he had picked
up the airgun previously in Sheung Wan area. He knew from
K the first sight of the item that it was a toy gun. He K
placed it in a flowerbed at Li Chit Street, as it was too
L dangerous for him to keep it with him. Then at around 11 pm L
on 27 January 2020, he went to Li Chit Street to retrieve
Exhibit 1 and he walked alone to Caltex Petrol Station and
M he robbed there on 28 January 2020. M
He pointed the exhibit at the staff and requested the staff
N to take out all money. He said he robbed $600 there and he N
said that the victim even asked to be allowed to keep the
O spare cash. The defendant said he left the petrol station O
and went to a supermarket, bought some food and some toilet
papers. And after purchasing at the supermarket, he went
P back to Li Chit Street to put down the toy gun. Then, he P
slept in a park and he had thrown away the clothes that he
wore during the robbery.
Q Q
The CCTV footage capturing the robbery was shown to him and
R he confirmed that he was indeed the person who entered the R
convenience store both before and also during the robbery.
He said he went there beforehand to check out the petrol
S station. And on 13 February, he woke up at the park and he S
picked up the exhibit and he decided to take the tram to
Canal Road to rob the petrol station again. As he was on
T T
his way, he saw a police vehicle so he took a detour to
Oi Kwan Road to wait for a better time to rob that petrol
U station later. He said he targeted petrol station as it had U
CRT22/16.4.2021/JC 3 HCCC 316/2020(1)/Sentence
V V
A less people there and he said he also prepared the gloves A
with him as he did not want to leave behind his
fingerprints.
B B
CCTV footages of the particular petrol station showed that
at the material time, defendant entered into the convenience
C C
store first to buy something and about eight minutes later,
he came again and showed Exhibit 1 to the victim. Then, the
D victim opened the cashier machine, defendant walked into the D
cashier area and took some money.
E The situation did not appear particularly tense, as the E
victim could persuade the defendant not to take all the
money and to leave some behind. The victim was also seen
F F
putting one arm around the defendant’s waist when he was
trying to persuade the defendant.
G G
So before the magistrate, the defendant admitted and
accepted that at the material times, he robbed the victim at
H the petrol station with the use of the Exhibit 1 and also at H
all material times he had with him Exhibit 1, which was an
I
imitation firearm, with intent to commit robbery. So those I
were the Admitted Facts.
J Background J
The defendant is aged 56, born in Hong Kong in 1964. He
K received education up to Form 1 level and he had worked as a K
transportation worker between 2016 and 2017. He was
L unemployed at the time of the offence. L
The defendant is not a man with a clear record. He appeared
M in court 17 times amassing some 34 previous convictions. M
Now, leaving aside the conviction for loitering, causing
wasteful employment of police, gambling-related offences,
N the defendant had a number of theft-related convictions. N
There were three robberies, nine thefts, three false
O instrument and the defendant also has four triad-related O
convictions and five blackmails and criminal intimidation.
In addition, the defendant also had previous convictions of
P criminal damage and common assault. P
The defendant’s criminal career spanned from 1984 when the
Q Q
defendant was 20 years old to last year, 2020. The last
offences on record were two charges of theft and the
R defendant was sentenced to 4 months’ concurrent imprisonment R
on 15 February 2020.
S As the present offences were committed on 28 January 2020 S
and 13 February 2020, the defendant committed the present
offences while on bail for the other two theft charges.
T T
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CRT22/16.4.2021/JC 4 HCCC 316/2020(1)/Sentence
V V
A Authorities submitted by the prosecution A
The prosecution submitted the following sentencing
B authorities for my consideration. Three authorities B
concerning the offence of robbery with the use of imitation
firearm, they were R v Yu Tai Wing [1995] 2 HKCLR 119, the
C C
second one is HKSAR v Mak Chi Ho (unreported, CACC 290/2007)
and the last one is Secretary for Justice v Lee Chun Ho,
D Jeef [2010] 1 HKLRD 84. D
There is one authority concerning the offence of possession
E of firearm with intent to commit an arrestable offence, that E
is the Attorney General v Lam Wing Kwong [1993] 2 HKCLR 227
and one authority on the aggravating factor of committing
F F
offence while on police bail and that is HKSAR v Cheong Man
Kit, again unreported, CACC 394/2017.
G G
Authorities submitted by the defence
H Mr Bernard Yuen, counsel for the defendant, sought to H
distinguish the present case from those relied on by the
I
prosecution and also in support of the defence submission, I
submitted the following three authorities. The first one is
HKSAR v Mateluna Araya Hugo Pedro and Others, that is
J unreported, CACC 369/2019, the second one is HKSAR v Zeng J
Xiangji, again unreported, CACC 403/2009, and the last one
is HKSAR v Huang Shuai (unreported, CACC 297/2013).
K K
The first case of Mateluna Araya dealt with the totality
L principle and the offences involved in that case were L
thefts, not the same as the offences in this case. The
other two authorities dealt with robberies with the use of
M imitation firearm. M
Mitigation
N N
Mr Yuen referred to the case of Lee Chun Ho, Jeef in which
O the Court of Appeal explained why robberies with the use of O
firearm was particularly hideous because of the fear caused
to the victims and the chance of law enforcement officers
P resorting to use their own, thereby exposing the public to P
serious risks of death or personal injuries. On the spur of
the moment, neither victims nor law enforcement officers may
Q Q
appreciate that the item was an imitation firearm, therefore
little difference should be made between an imitation
R firearm and a real firearm. The Court of Appeal had R
consistently adopted a starting point of 10 years for
robbery involving the use of imitation firearm.
S S
Mr Yuen referred to the Admitted Facts in the present case
and submitted that the circumstances of the present case
T T
were that the victim in the robbery was not put in fear for
any extensive period. The defendant pocketed the gun-like
U object after pointing it at the victim and having declared U
CRT22/16.4.2021/JC 5 HCCC 316/2020(1)/Sentence
V V
A robbery. The atmosphere was not tense and the victim A
succeeded in persuading the defendant not to take all the
money.
B B
Mr Yuen’s submission was in effect that the robbery
committed by the defendant was far less serious than those
C C
robberies which involved jewellery and goldsmith shops,
banks, or people seen leaving banks with large sums of
D money, or where the victims were put in fear for a prolonged D
period, or with the imitation firearm looking real. He
submitted that this Court should look at a starting point
E lower than 10 years in the present case. E
Mr Yuen referred to the description of the imitation firearm
F F
by the expert as disclosed in the Admitted Facts. He also
asked this Court to view the gun-like object. He said that
G the end of the barrel was obviously melted, damaged and G
blocked, and was clearly a fake gun which was not functional
and that explains why the defendant put it back into his
H pocket after showing it briefly to the victim. The chance H
of the defendant using it or showing it to any other person
I
or law enforcement agent was practically zero. I
Mr Yuen also submitted that the defendant made frank and
J spontaneous admission at the first opportunity for both J
charges even before learning what evidence the police had
against him. The defendant had also made full confession as
K to what he intended to do with the imitation firearm in K
relation to Count 2.
L L
Mr Yuen urged this Court to consider all the factors
mentioned in consideration of the sentence. As there are
M two counts involved, Mr Yuen also prayed in aid the M
authority of Mateluna Araya regarding the principle of
totality. Mr Yuen does not quarrel that as the defendant
N had committed the present offences while on bail, that was N
an aggravating factor to enhance the sentence.
O O
Consideration of the sentence
P A person convicted of robbery on indictment is liable to be P
sentenced to imprisonment for life. And there is no quarrel
that when a robbery is committed with the use of a firearm,
Q Q
the sentence to be imposed is to be a heavy one.
R In the much quoted case of Yu Tai Wing, that is the one R
relied on by the prosecution here, the Court of Appeal held
that for bank robberies, jewellery shops and goldsmith shops
S robberies, security van or payroll robberies and the like, S
no distinction should be made between cases where genuine
firearms are used but not discharged and those in which an
T T
imitation firearm is used. A distinction also exists
between robberies mentioned above and those carried out by
U an opportunist sole robber with the use of an imitation U
CRT22/16.4.2021/JC 6 HCCC 316/2020(1)/Sentence
V V
A firearm in a public place, with no injury caused to the A
victim. The sentence for the latter should be considerably
lower than the sentence for a robbery of the first type.
B B
So in the case of the Yu Tai Wing itself, Yu, who was a
policeman, kept watch of customers who withdrew money and
C C
waylaid the female victim outside the bank, threatened her
with an imitation firearm and robbed her of her bag of
D money. He panicked when the victim gave chase, dropped the D
bag and the imitation firearm and was overpowered. The
trial judge was of the view that a starting point of 12
E years was appropriate for the robbery. He however reduced E
the 12 years to one of 10 years to take into account the
additional hardship to be faced by Yu, who was a policeman,
F F
in prison and the trial judge adopted 5 years for the
possession of an imitation firearm charge, both sentences to
G run concurrently. G
The Court of Appeal was of the view that a starting point of
H 12 years was manifestly excessive. While the sentence of H
5 years was appropriate for the possession of firearm
I
offence, an overall starting point of 10 years after trial I
was appropriate.
J Applying the totality principle and taking into account Yu J
had completed 20 years of unblemished service as a policeman
and that he had acted out of character, the Court of Appeal
K was of the view that an overall sentence of 8½ years was K
called for. So the appeal was allowed and consecutive
L sentences of 5 and 3½ years were imposed instead. L
In the case of Mak Chi Ho, Mak pleaded guilty to one count
M of robbery and one count of attempted robbery, both M
involving convenience stores. Mak was sentenced to 6½ years
for each count, with 3½ of Count 2 to run consecutively to
N the 6½ imposed on Count 1, making a total of 10 years’ N
imprisonment. On appeal, the Court of Appeal observed that
O the offences were committed in the early hours of the O
morning by Mak alone, with him pointing a convincing
imitation firearm at the counter staff when he declared
P robbery. P
In the attempted robbery, the female staff was so scared
Q Q
that she was unable to comply with Mak’s demand for money so
he left empty-handed. The Court of Appeal was satisfied
R that the trial judge imposed proper sentences for both R
offences. The sentences imposed were not wrong in principle
nor manifestly excessive.
S S
In the case of Lee Chun Ho, Jeef, Lee robbed a woman shortly
after midnight, pointing an imitation firearm at her and
T T
snatching her knapsack. The victim gave chase and shouted
robbery. A passer-by, X, tried to intercept Lee. Lee
U pointed the imitation firearm at X and said “Don’t chase U
CRT22/16.4.2021/JC 7 HCCC 316/2020(1)/Sentence
V V
A after me or I’ll fire at you.” X made a report to the A
police while he and the victim continued to chase Lee. Two
off-duty police officers joined in the chase and Lee dropped
B the imitation firearm and the knapsack before being B
arrested.
C C
The trial judge adopted a starting point of 6 years for the
robbery using imitation firearm and the offence of using
D imitation firearm with intent to resist or prevent lawful D
arrest, reducing the sentence by one-third for the guilty
plea, and a further 6 months for plea and cooperation with
E the police and the trial judge ordered both sentences to run E
concurrently.
F F
As Lee was already serving a sentence for theft and common
assault and he had committed these offences while on bail,
G the Secretary for Justice sought a review of the sentence. G
The Court of Appeal stated that the appropriate starting
point for robbery using imitation firearms was 10 years’
H imprisonment. The sentence imposed were manifestly H
inadequate. The sentences were increased to 6½ years. As
I
these offences were committed while the defendant was on I
bail, the Court of Appeal said there was no reason not to
order the 6½ years to run consecutively to the 13-month
J sentence Lee was already serving at the time of sentencing. J
In the case of Cheong Man Kit, Cheong committed the offences
K of theft and burglary while he was an absconder and a wanted K
person, having failed to answer his bail condition to report
L to the police in relation to another case. The Court of L
Appeal said that it was a seriously aggravating factor that
warranted appropriate enhancement to the starting point of
M the offence in question. M
In the case of Zeng Xiangji, Zeng robbed a jewellery and
N goldsmith shop with the use of an imitation firearm. Zeng N
pointed the imitation firearm at one of the female staff,
O causing her fear. Zeng put two gold necklaces with pendants O
valued at around $50,000 onto himself before pocketing the
imitation firearm and left the shop. The trial judge
P adopted a starting point of 15 years and reduced it to 10 P
for Zeng’s plea.
Q Q
On appeal, the Court of Appeal was of the view that as Zeng
acted alone in one incident, and he did not use any other
R weapon to threaten the victims nor did he use any force, no R
one was injured and the value of the property robbed was not
particularly high, the starting point of 15 years was
S manifestly excessive. The starting point was reduced to S
12 years and the sentence was reduced from 10 to 8 years.
T T
In the case of Huang Shuai, the victim was parking his car
inside a carpark when he heard a sound similar to that
U emitted by an airgun. He then noticed Huang had entered his U
CRT22/16.4.2021/JC 8 HCCC 316/2020(1)/Sentence
V V
A car and sat next to him. Huang was holding something like a A
gun in his right hand and a magazine box for bullets on his
left. He demanded the victim to take out all the money.
B The victim was very scared and he told Huang that Huang was B
sitting on the wallet with the money. So Huang then took
$2,000 from the victim’s wallet and threw the wallet down.
C C
A friend of the victim happened to be also parking his car
D and saw the victim. This friend then approached the victim D
with another friend and they both saw the robbery. The two
men then pushed the door of the car to stop Huang leaving.
E However, on noticing the gun-like object in Huang’s hand, E
they backed away and Huang ran away. Huang was later
arrested.
F F
A plastic bullet was later found inside the victim’s car
G after a report was made to the police. The trial judge G
adopted a starting point of 12 years and reduced it to
8 years for Huang’s plea. The Court of Appeal did not
H disturb the sentence. H
I
In the present case, the defendant targeted a lone employee I
at a petrol station late at night. Unlike a bank, jewellery
shop or the like, there would not be huge sums of money or
J valuables in a petrol station. I have seen the imitation J
firearm in question as requested by Mr Yuen. I agree with
Mr Yuen that the tip of the barrel was obviously melted or
K damaged. I also noted that one can clearly see that the K
object was made of plastic.
L L
I have also viewed the exceptionally clear and coloured CCTV
footage of the incident, which not only recorded the
M movements, but also the sound, the conversation between the M
defendant and the victim. The defendant can be seen to show
the gun-like object to the victim in a rather casual manner
N and he very quickly pocketed the object after showing it. N
No doubt the defendant wished the victim to believe that he
O had a gun but not wanting the victim to see the object too O
clearly.
P From the demeanour of the victim, it can also be seen that P
he did not appear to be frightened and while the defendant
was taking the money from the till, there was some casual
Q Q
bantering between him and the victim and the victim also
managed to persuade the defendant not to take all the money
R and can also be clearly seen, the victim put his hand around R
the waist area of the defendant while persuading him.
S Having considered all the circumstances, I agree with S
Mr Yuen that the case is not as serious as those cited and a
starting point of 10 years is not warranted for the robbery.
T T
Having considered the sentencing guidelines for robbery with
weapons such as a knife but excluding firearms in the case
U U
CRT22/16.4.2021/JC 9 HCCC 316/2020(1)/Sentence
V V
A of Mo Kwong Sang v R [1981] 1 HKLR 610, I am of the view A
that a starting point of 7 years is appropriate.
B The defendant is not a first offender. Of 17 appearances in B
courts, he had a total of 34 convictions spanning from
1984 to 2017 and there was a gap of 5 years between his
C C
convictions. There was a gap between 2012 and his last
conviction in 2017.
D D
Now, the defendant committed the robbery while he was on
bail for another case, which is an aggravating factor. I
E understand the defendant was arrested in 2018 for the shop E
theft and he jumped bail for over a year until he was
arrested in February 2020 for the present case. So I will
F F
enhance the 7 years’ starting point by 9 months to take into
account the defendant’s bad record and the fact that he
G committed the present offences while on bail. So the G
enhanced starting point is therefore 7 years and 9 months.
H The defendant pleaded guilty at the earliest available H
opportunity and is entitled to a full one-third discount.
I
So for this offence, the sentence is one of 5 years and I
2 months.
J Now, Count 2, carrying an imitation firearm with intent to J
commit an arrestable offence. A person convicted of this
offence on indictment is again liable to life imprisonment
K and this offence normally attracts a sentence of 5 years K
(for example see the case of Yu Tai Wing).
L L
Bearing in mind the imitation firearm in question does not
really look like a genuine gun, I am of the view that a
M starting point of 3 years is appropriate. As I have already M
enhanced the starting point for the robbery charge, I will
not enhance the starting point for this count for the same
N aggravating factors to avoid doubling the sentence. The N
defendant is also entitled to a full one-third discount for
O this offence, so the sentence is therefore one of 2 years. O
These two offences did not take place on the same day. The
P robbery took place on 28 January 2020 while the Count 2 P
happened on 13 February 2020. So it would therefore be
wrong in principle to order both sentences to run
Q Q
concurrently. I will have to consider the totality
principle to decide what the overall sentence should be to
R reflect the criminality involved. R
Now, having considered all the circumstances, I am of the
S view that an overall sentence of 6 years is appropriate for S
both offences.
T T
U U
CRT22/16.4.2021/JC 10 HCCC 316/2020(1)/Sentence
V V
A So the actual sentence. Count 1, 5 years and 2 months’ A
imprisonment; Count 2, 2 years’ imprisonment, 10 months of
which to run at the expiration of the 5 years and 2 months’
B imprisonment imposed on Count 1, then making a total of B
6 years’ imprisonment.
C C
D D
E E
F F
G G
H 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
CRT22/16.4.2021/JC 11 HCCC 316/2020(1)/Sentence
V V
A HCCC 316/2020 A
[2021] HKCFI 1268
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 316 OF 2020
D ----------------- D
HKSAR
E E
v
F F
Chu King-shing, Danny
G ----------------- G
Before: Hon Barnes J
H Date: 16 April 2021 at 10.30 am H
Present: Mr Cheung Man-kwan Bobby, SPP of the Department of
I
Justice, for HKSAR I
Mr Bernard Yuen, instructed by Johnnie Yam, Jacky
Lee & Co, assigned by DLA, for the accused
J Offence: (1) Robbery (搶劫罪) J
(2) Carrying an imitation firearm with intent to commit
an arrestable offence (攜帶仿製火器意圖犯可逮捕的罪行)
K K
---------------------------------
L L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
N COURT: The defendant, Chu King-shing, Danny, was charged with N
the following two charges. One, robbery, contrary to
section 10 of the Theft Ordinance, Chapter 210, that is
O Count 1, and carrying an imitation firearm with intent to O
commit an arrestable offence, contrary to section
18(1) and (3) of the Firearms and Ammunition Ordinance,
P Chapter 238, and that is Count 2. P
Q The defendant pleaded guilty before a magistrate and was Q
committed to the Court of First Instance of the High Court
for sentence.
R R
Admitted Facts
S S
At around 10 pm on 27 January 2020, Mr Ng is the victim. He
was a male aged 76 at the time, an employee of the Chevron
T Hong Kong Company Limited. He returned for the night shift T
duty at the Caltex Petrol Filling Station at 285 Gloucester
Road, Causeway bay. He was the only staff on duty that
U U
CRT22/16.4.2021/JC 1 HCCC 316/2020(1)/Sentence
V V
A night, and he checked correct the $2,000 of spare cash in A
the cashier machine.
B At around 12.23 am on 28 January 2020, the victim, PW1, was B
at the convenience store in the Caltex Petrol Station. At
the time, a man in dark clothing later known to be the
C C
defendant, wearing also a black mask, came into the petrol
station. He walked close to the victim and declared robbery
D and the victim saw that the defendant was holding a black D
object appearing to be a handgun in his right hand pointing
at the victim. Defendant then put the handgun object back
E into his right pants’ pocket and told the victim to take out E
all the money. The victim then opened the cashier machine
and the defendant took money away from the box on the left
F F
side, where the $100 banknotes were kept. The defendant
then left the petrol station.
G G
The victim reported to the police. According to this
victim, the company was insured for the loss and the amount
H lost was later confirmed to be $1,100. H
I
The police later arrived and checked the CCTV footage of the I
petrol station and it revealed that about eight minutes
earlier before the robbery, a person wearing the same
J clothing as the defendant had come to purchase something. J
Then on 13 February 2020, a team of police officers
K conducted an anti-robbery operation in the Wan Chai area. K
At around 10.54 pm, a police officer in plain clothes
L observed the defendant to be of similar appearance of the L
suspect who robbed the Caltex Petrol Station on 28 January
2020 and this police officer then was walking along Lockhart
M Road. So he kept the defendant under observation. M
The defendant was seen putting on a black mask and a pair of
N black gloves at Wan Chai Road and continued to walk and N
turned onto Morrison Hill Road, and there this plainclothes
O police officer saw there was a police vehicle parked at No O
23 Morrison Hill Road and he observed the defendant walking
faster than before, and turned into Lap Tak Lane, and then
P eventually the defendant went to Oi Kwan Road. P
So at Oi Kwan Road, the police officers intercepted the
Q Q
defendant, and since the defendant was suspected to be in
possession of a firearm, so the officers had their pistols
R ready. They subdued the defendant, a search was conducted R
and a black coloured 17-centimetre-long object appearing to
be an airgun, that is Exhibit 1, was found in the
S defendant’s left jacket’s pocket. S
Under inquiry, the defendant admitted that he committed the
T T
robbery on 28 January 2020 at the Caltex Petrol Station and
he was arrested. Under caution, the defendant admitted
U U
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A robbing the petrol station on that day, 28 January, for A
HK$600.
B The defendant further admitted that he was on his way to the B
petrol station at Canal Road to rob again as he only robbed
$600 last time, but he walked away as he saw a police
C C
vehicle. So the defendant was arrested and under caution he
admitted the gun was a fake one and he knew he needed to pay
D for his actions. The cautioned admissions were D
post-recorded in the police notebook and signed by the
defendant as acknowledgement.
E E
The item, Exhibit 1, was subsequently examined by a firearm
expert, who found that Exhibit 1 to be consisted of an
F F
airgun and a magazine. The airgun was a spring-powered
airgun designed to discharge 6 millimetre calibre plastic
G balls and was marked with the words “made in Philippines”. G
This airgun was not in working order due to its blocked
H barrel and no test shooting derivation of muzzle energy H
could be conducted. As to the magazine, it was suitable to
I
be inserted in the magazine well for the above airgun, and I
it was to store 6 millimetre calibre plastic balls.
J In cautioned video-recorded interviews with the defendant, J
the defendant admitted among other things that he had picked
up the airgun previously in Sheung Wan area. He knew from
K the first sight of the item that it was a toy gun. He K
placed it in a flowerbed at Li Chit Street, as it was too
L dangerous for him to keep it with him. Then at around 11 pm L
on 27 January 2020, he went to Li Chit Street to retrieve
Exhibit 1 and he walked alone to Caltex Petrol Station and
M he robbed there on 28 January 2020. M
He pointed the exhibit at the staff and requested the staff
N to take out all money. He said he robbed $600 there and he N
said that the victim even asked to be allowed to keep the
O spare cash. The defendant said he left the petrol station O
and went to a supermarket, bought some food and some toilet
papers. And after purchasing at the supermarket, he went
P back to Li Chit Street to put down the toy gun. Then, he P
slept in a park and he had thrown away the clothes that he
wore during the robbery.
Q Q
The CCTV footage capturing the robbery was shown to him and
R he confirmed that he was indeed the person who entered the R
convenience store both before and also during the robbery.
He said he went there beforehand to check out the petrol
S station. And on 13 February, he woke up at the park and he S
picked up the exhibit and he decided to take the tram to
Canal Road to rob the petrol station again. As he was on
T T
his way, he saw a police vehicle so he took a detour to
Oi Kwan Road to wait for a better time to rob that petrol
U station later. He said he targeted petrol station as it had U
CRT22/16.4.2021/JC 3 HCCC 316/2020(1)/Sentence
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A less people there and he said he also prepared the gloves A
with him as he did not want to leave behind his
fingerprints.
B B
CCTV footages of the particular petrol station showed that
at the material time, defendant entered into the convenience
C C
store first to buy something and about eight minutes later,
he came again and showed Exhibit 1 to the victim. Then, the
D victim opened the cashier machine, defendant walked into the D
cashier area and took some money.
E The situation did not appear particularly tense, as the E
victim could persuade the defendant not to take all the
money and to leave some behind. The victim was also seen
F F
putting one arm around the defendant’s waist when he was
trying to persuade the defendant.
G G
So before the magistrate, the defendant admitted and
accepted that at the material times, he robbed the victim at
H the petrol station with the use of the Exhibit 1 and also at H
all material times he had with him Exhibit 1, which was an
I
imitation firearm, with intent to commit robbery. So those I
were the Admitted Facts.
J Background J
The defendant is aged 56, born in Hong Kong in 1964. He
K received education up to Form 1 level and he had worked as a K
transportation worker between 2016 and 2017. He was
L unemployed at the time of the offence. L
The defendant is not a man with a clear record. He appeared
M in court 17 times amassing some 34 previous convictions. M
Now, leaving aside the conviction for loitering, causing
wasteful employment of police, gambling-related offences,
N the defendant had a number of theft-related convictions. N
There were three robberies, nine thefts, three false
O instrument and the defendant also has four triad-related O
convictions and five blackmails and criminal intimidation.
In addition, the defendant also had previous convictions of
P criminal damage and common assault. P
The defendant’s criminal career spanned from 1984 when the
Q Q
defendant was 20 years old to last year, 2020. The last
offences on record were two charges of theft and the
R defendant was sentenced to 4 months’ concurrent imprisonment R
on 15 February 2020.
S As the present offences were committed on 28 January 2020 S
and 13 February 2020, the defendant committed the present
offences while on bail for the other two theft charges.
T T
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CRT22/16.4.2021/JC 4 HCCC 316/2020(1)/Sentence
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A Authorities submitted by the prosecution A
The prosecution submitted the following sentencing
B authorities for my consideration. Three authorities B
concerning the offence of robbery with the use of imitation
firearm, they were R v Yu Tai Wing [1995] 2 HKCLR 119, the
C C
second one is HKSAR v Mak Chi Ho (unreported, CACC 290/2007)
and the last one is Secretary for Justice v Lee Chun Ho,
D Jeef [2010] 1 HKLRD 84. D
There is one authority concerning the offence of possession
E of firearm with intent to commit an arrestable offence, that E
is the Attorney General v Lam Wing Kwong [1993] 2 HKCLR 227
and one authority on the aggravating factor of committing
F F
offence while on police bail and that is HKSAR v Cheong Man
Kit, again unreported, CACC 394/2017.
G G
Authorities submitted by the defence
H Mr Bernard Yuen, counsel for the defendant, sought to H
distinguish the present case from those relied on by the
I
prosecution and also in support of the defence submission, I
submitted the following three authorities. The first one is
HKSAR v Mateluna Araya Hugo Pedro and Others, that is
J unreported, CACC 369/2019, the second one is HKSAR v Zeng J
Xiangji, again unreported, CACC 403/2009, and the last one
is HKSAR v Huang Shuai (unreported, CACC 297/2013).
K K
The first case of Mateluna Araya dealt with the totality
L principle and the offences involved in that case were L
thefts, not the same as the offences in this case. The
other two authorities dealt with robberies with the use of
M imitation firearm. M
Mitigation
N N
Mr Yuen referred to the case of Lee Chun Ho, Jeef in which
O the Court of Appeal explained why robberies with the use of O
firearm was particularly hideous because of the fear caused
to the victims and the chance of law enforcement officers
P resorting to use their own, thereby exposing the public to P
serious risks of death or personal injuries. On the spur of
the moment, neither victims nor law enforcement officers may
Q Q
appreciate that the item was an imitation firearm, therefore
little difference should be made between an imitation
R firearm and a real firearm. The Court of Appeal had R
consistently adopted a starting point of 10 years for
robbery involving the use of imitation firearm.
S S
Mr Yuen referred to the Admitted Facts in the present case
and submitted that the circumstances of the present case
T T
were that the victim in the robbery was not put in fear for
any extensive period. The defendant pocketed the gun-like
U object after pointing it at the victim and having declared U
CRT22/16.4.2021/JC 5 HCCC 316/2020(1)/Sentence
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A robbery. The atmosphere was not tense and the victim A
succeeded in persuading the defendant not to take all the
money.
B B
Mr Yuen’s submission was in effect that the robbery
committed by the defendant was far less serious than those
C C
robberies which involved jewellery and goldsmith shops,
banks, or people seen leaving banks with large sums of
D money, or where the victims were put in fear for a prolonged D
period, or with the imitation firearm looking real. He
submitted that this Court should look at a starting point
E lower than 10 years in the present case. E
Mr Yuen referred to the description of the imitation firearm
F F
by the expert as disclosed in the Admitted Facts. He also
asked this Court to view the gun-like object. He said that
G the end of the barrel was obviously melted, damaged and G
blocked, and was clearly a fake gun which was not functional
and that explains why the defendant put it back into his
H pocket after showing it briefly to the victim. The chance H
of the defendant using it or showing it to any other person
I
or law enforcement agent was practically zero. I
Mr Yuen also submitted that the defendant made frank and
J spontaneous admission at the first opportunity for both J
charges even before learning what evidence the police had
against him. The defendant had also made full confession as
K to what he intended to do with the imitation firearm in K
relation to Count 2.
L L
Mr Yuen urged this Court to consider all the factors
mentioned in consideration of the sentence. As there are
M two counts involved, Mr Yuen also prayed in aid the M
authority of Mateluna Araya regarding the principle of
totality. Mr Yuen does not quarrel that as the defendant
N had committed the present offences while on bail, that was N
an aggravating factor to enhance the sentence.
O O
Consideration of the sentence
P A person convicted of robbery on indictment is liable to be P
sentenced to imprisonment for life. And there is no quarrel
that when a robbery is committed with the use of a firearm,
Q Q
the sentence to be imposed is to be a heavy one.
R In the much quoted case of Yu Tai Wing, that is the one R
relied on by the prosecution here, the Court of Appeal held
that for bank robberies, jewellery shops and goldsmith shops
S robberies, security van or payroll robberies and the like, S
no distinction should be made between cases where genuine
firearms are used but not discharged and those in which an
T T
imitation firearm is used. A distinction also exists
between robberies mentioned above and those carried out by
U an opportunist sole robber with the use of an imitation U
CRT22/16.4.2021/JC 6 HCCC 316/2020(1)/Sentence
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A firearm in a public place, with no injury caused to the A
victim. The sentence for the latter should be considerably
lower than the sentence for a robbery of the first type.
B B
So in the case of the Yu Tai Wing itself, Yu, who was a
policeman, kept watch of customers who withdrew money and
C C
waylaid the female victim outside the bank, threatened her
with an imitation firearm and robbed her of her bag of
D money. He panicked when the victim gave chase, dropped the D
bag and the imitation firearm and was overpowered. The
trial judge was of the view that a starting point of 12
E years was appropriate for the robbery. He however reduced E
the 12 years to one of 10 years to take into account the
additional hardship to be faced by Yu, who was a policeman,
F F
in prison and the trial judge adopted 5 years for the
possession of an imitation firearm charge, both sentences to
G run concurrently. G
The Court of Appeal was of the view that a starting point of
H 12 years was manifestly excessive. While the sentence of H
5 years was appropriate for the possession of firearm
I
offence, an overall starting point of 10 years after trial I
was appropriate.
J Applying the totality principle and taking into account Yu J
had completed 20 years of unblemished service as a policeman
and that he had acted out of character, the Court of Appeal
K was of the view that an overall sentence of 8½ years was K
called for. So the appeal was allowed and consecutive
L sentences of 5 and 3½ years were imposed instead. L
In the case of Mak Chi Ho, Mak pleaded guilty to one count
M of robbery and one count of attempted robbery, both M
involving convenience stores. Mak was sentenced to 6½ years
for each count, with 3½ of Count 2 to run consecutively to
N the 6½ imposed on Count 1, making a total of 10 years’ N
imprisonment. On appeal, the Court of Appeal observed that
O the offences were committed in the early hours of the O
morning by Mak alone, with him pointing a convincing
imitation firearm at the counter staff when he declared
P robbery. P
In the attempted robbery, the female staff was so scared
Q Q
that she was unable to comply with Mak’s demand for money so
he left empty-handed. The Court of Appeal was satisfied
R that the trial judge imposed proper sentences for both R
offences. The sentences imposed were not wrong in principle
nor manifestly excessive.
S S
In the case of Lee Chun Ho, Jeef, Lee robbed a woman shortly
after midnight, pointing an imitation firearm at her and
T T
snatching her knapsack. The victim gave chase and shouted
robbery. A passer-by, X, tried to intercept Lee. Lee
U pointed the imitation firearm at X and said “Don’t chase U
CRT22/16.4.2021/JC 7 HCCC 316/2020(1)/Sentence
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A after me or I’ll fire at you.” X made a report to the A
police while he and the victim continued to chase Lee. Two
off-duty police officers joined in the chase and Lee dropped
B the imitation firearm and the knapsack before being B
arrested.
C C
The trial judge adopted a starting point of 6 years for the
robbery using imitation firearm and the offence of using
D imitation firearm with intent to resist or prevent lawful D
arrest, reducing the sentence by one-third for the guilty
plea, and a further 6 months for plea and cooperation with
E the police and the trial judge ordered both sentences to run E
concurrently.
F F
As Lee was already serving a sentence for theft and common
assault and he had committed these offences while on bail,
G the Secretary for Justice sought a review of the sentence. G
The Court of Appeal stated that the appropriate starting
point for robbery using imitation firearms was 10 years’
H imprisonment. The sentence imposed were manifestly H
inadequate. The sentences were increased to 6½ years. As
I
these offences were committed while the defendant was on I
bail, the Court of Appeal said there was no reason not to
order the 6½ years to run consecutively to the 13-month
J sentence Lee was already serving at the time of sentencing. J
In the case of Cheong Man Kit, Cheong committed the offences
K of theft and burglary while he was an absconder and a wanted K
person, having failed to answer his bail condition to report
L to the police in relation to another case. The Court of L
Appeal said that it was a seriously aggravating factor that
warranted appropriate enhancement to the starting point of
M the offence in question. M
In the case of Zeng Xiangji, Zeng robbed a jewellery and
N goldsmith shop with the use of an imitation firearm. Zeng N
pointed the imitation firearm at one of the female staff,
O causing her fear. Zeng put two gold necklaces with pendants O
valued at around $50,000 onto himself before pocketing the
imitation firearm and left the shop. The trial judge
P adopted a starting point of 15 years and reduced it to 10 P
for Zeng’s plea.
Q Q
On appeal, the Court of Appeal was of the view that as Zeng
acted alone in one incident, and he did not use any other
R weapon to threaten the victims nor did he use any force, no R
one was injured and the value of the property robbed was not
particularly high, the starting point of 15 years was
S manifestly excessive. The starting point was reduced to S
12 years and the sentence was reduced from 10 to 8 years.
T T
In the case of Huang Shuai, the victim was parking his car
inside a carpark when he heard a sound similar to that
U emitted by an airgun. He then noticed Huang had entered his U
CRT22/16.4.2021/JC 8 HCCC 316/2020(1)/Sentence
V V
A car and sat next to him. Huang was holding something like a A
gun in his right hand and a magazine box for bullets on his
left. He demanded the victim to take out all the money.
B The victim was very scared and he told Huang that Huang was B
sitting on the wallet with the money. So Huang then took
$2,000 from the victim’s wallet and threw the wallet down.
C C
A friend of the victim happened to be also parking his car
D and saw the victim. This friend then approached the victim D
with another friend and they both saw the robbery. The two
men then pushed the door of the car to stop Huang leaving.
E However, on noticing the gun-like object in Huang’s hand, E
they backed away and Huang ran away. Huang was later
arrested.
F F
A plastic bullet was later found inside the victim’s car
G after a report was made to the police. The trial judge G
adopted a starting point of 12 years and reduced it to
8 years for Huang’s plea. The Court of Appeal did not
H disturb the sentence. H
I
In the present case, the defendant targeted a lone employee I
at a petrol station late at night. Unlike a bank, jewellery
shop or the like, there would not be huge sums of money or
J valuables in a petrol station. I have seen the imitation J
firearm in question as requested by Mr Yuen. I agree with
Mr Yuen that the tip of the barrel was obviously melted or
K damaged. I also noted that one can clearly see that the K
object was made of plastic.
L L
I have also viewed the exceptionally clear and coloured CCTV
footage of the incident, which not only recorded the
M movements, but also the sound, the conversation between the M
defendant and the victim. The defendant can be seen to show
the gun-like object to the victim in a rather casual manner
N and he very quickly pocketed the object after showing it. N
No doubt the defendant wished the victim to believe that he
O had a gun but not wanting the victim to see the object too O
clearly.
P From the demeanour of the victim, it can also be seen that P
he did not appear to be frightened and while the defendant
was taking the money from the till, there was some casual
Q Q
bantering between him and the victim and the victim also
managed to persuade the defendant not to take all the money
R and can also be clearly seen, the victim put his hand around R
the waist area of the defendant while persuading him.
S Having considered all the circumstances, I agree with S
Mr Yuen that the case is not as serious as those cited and a
starting point of 10 years is not warranted for the robbery.
T T
Having considered the sentencing guidelines for robbery with
weapons such as a knife but excluding firearms in the case
U U
CRT22/16.4.2021/JC 9 HCCC 316/2020(1)/Sentence
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A of Mo Kwong Sang v R [1981] 1 HKLR 610, I am of the view A
that a starting point of 7 years is appropriate.
B The defendant is not a first offender. Of 17 appearances in B
courts, he had a total of 34 convictions spanning from
1984 to 2017 and there was a gap of 5 years between his
C C
convictions. There was a gap between 2012 and his last
conviction in 2017.
D D
Now, the defendant committed the robbery while he was on
bail for another case, which is an aggravating factor. I
E understand the defendant was arrested in 2018 for the shop E
theft and he jumped bail for over a year until he was
arrested in February 2020 for the present case. So I will
F F
enhance the 7 years’ starting point by 9 months to take into
account the defendant’s bad record and the fact that he
G committed the present offences while on bail. So the G
enhanced starting point is therefore 7 years and 9 months.
H The defendant pleaded guilty at the earliest available H
opportunity and is entitled to a full one-third discount.
I
So for this offence, the sentence is one of 5 years and I
2 months.
J Now, Count 2, carrying an imitation firearm with intent to J
commit an arrestable offence. A person convicted of this
offence on indictment is again liable to life imprisonment
K and this offence normally attracts a sentence of 5 years K
(for example see the case of Yu Tai Wing).
L L
Bearing in mind the imitation firearm in question does not
really look like a genuine gun, I am of the view that a
M starting point of 3 years is appropriate. As I have already M
enhanced the starting point for the robbery charge, I will
not enhance the starting point for this count for the same
N aggravating factors to avoid doubling the sentence. The N
defendant is also entitled to a full one-third discount for
O this offence, so the sentence is therefore one of 2 years. O
These two offences did not take place on the same day. The
P robbery took place on 28 January 2020 while the Count 2 P
happened on 13 February 2020. So it would therefore be
wrong in principle to order both sentences to run
Q Q
concurrently. I will have to consider the totality
principle to decide what the overall sentence should be to
R reflect the criminality involved. R
Now, having considered all the circumstances, I am of the
S view that an overall sentence of 6 years is appropriate for S
both offences.
T T
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CRT22/16.4.2021/JC 10 HCCC 316/2020(1)/Sentence
V V
A So the actual sentence. Count 1, 5 years and 2 months’ A
imprisonment; Count 2, 2 years’ imprisonment, 10 months of
which to run at the expiration of the 5 years and 2 months’
B imprisonment imposed on Count 1, then making a total of B
6 years’ imprisonment.
C C
D D
E E
F F
G G
H 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
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CRT22/16.4.2021/JC 11 HCCC 316/2020(1)/Sentence
V V