IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 265 OF 2016
Reasons for Sentence
1. The defendants, who are jointly charged, have each admitted the charge they face, namely, robbery, contrary to Section 10 of the Theft Ordinance, Cap 210.
2. As they each speak Punjabi, a Punjabi interpreter was arranged and the proceedings were all interpreted into Punjabi for them.
3. They have each admitted the summary of facts dated 5 August 2016 that was read into the record by Mr McGuinniety.
Counsel on their behalf also confirmed that they each admitted these facts.
4. The facts disclose that Mr Lee Chung-kei was working inside a 7-Eleven convenience store at Shop No 3A, Ground Floor, Nos 20 to 24Ma Tin Road in Yuen Long in the early hours of 20 December 2016. He was working at the staff counter/cashier, which had a CCTV camerawith voice recording function operating and it was working properly at the material time and recording what was happening withinthe store.
5. At about 3 am, the three defendants entered the store. They were each wearing surgical masks and had on “hoodies” covering theirheads. They ordered some items, when suddenly D1 threw some chilli powder in the face of Mr Lee. At the same time, one of the defendantsswore at Mr Lee in Cantonese. D1 and D2 forced their way behind the counter and D2 hit Mr Lee on the head several times.
6. At this point, D3 went outside the shop to act as the lookout. D1 tried to open the cash register but failed. D2 then proceededto hit Mr Lee with his hands on his upper body until he opened the cash register for them. D1 and D2 took approximately HK$2,848from the cash register and a packet of Marlboro cigarettes and then fled.
7. During the robbery, Mr Lee was pleading for his safety and repeatedly asked the defendants to calm down. Despite the chilli powderhurting his eyes, Mr Lee was able to trigger the store’s security alarm.
8. The CCTV footage of what happened inside the store from the time the three defendants entered the store until they left was viewedby the court.
9. A couple who were standing nearby during the incident and saw what happened made a report to the police and were later escorted aroundthe vicinity to try to locate the defendants.
10. About half an hour later and about 2 kilometres away from the store, they pointed out the three defendants to the police as the threemen they had seen in the store involved in the robbery.
11. The defendants were searched. Cash totalling $2,060.40 were found on the three defendants. A packet of chilli powder and a packetof Marlboro cigarettes were found from D1. D1’s jacket that he was wearing was tainted with chilli powder similar to that usedin the robbery.
12. The three defendants were arrested and cautioned, but remained silent under caution.
13. In the subsequent video record of interviews under caution, each defendant denied the offence. The clothing, colour and generalpattern of the clothes worn by each defendant when they each were intercepted and arrested matched that of the three males capturedon the CCTV footage.
14. The traces of orange powder found on D1’s jacket and on his body were seized and forensic examination showed they contained solidcapsacin and dihydrocapsaicin.
15. The medical report of Mr Lee showed he had suffered redness of both eyes and tenderness on his scalp. The medical report itselfwas submitted to the court.
16. I was satisfied beyond all reasonable doubt that the facts admitted by each defendant supported the charge and accordingly I convictedeach of them of the offence of robbery.
Mitigation and sentencing considerations
17. The antecedent statements of each defendant was read into the record by Mr McGuinniety. No issue was taken by any of the defendantsin respect of the contents. All the defendants had clear records. D1 is now aged 34 years, D2 is now aged 30 years and D3 is nowaged 36 years.
18. D1 came from Haryana near Delhi in India. He is educated to Grade 10 in India. He is a Form 8 Recognizance holder. He came toHong Kong illegally in 2014 by boat. During a stop and search in January 2015 his illegal presence in Hong Kong came to the attentionof the Hong Kong authorities. He lodged his claim for asylum.
19. I am told that he was having a love affair with a girl in India, whose parents were of a higher social standing and who did not approveof him for their daughter. They worked in the government and had influence with the authorities. They threatened to kill him andthat is the reason he left India.
20. Mr Beel submitted that the robbery itself was short-lived, about two minutes in all. Although Mr Lee must have been terrified, fortuitouslyhe did not sustain serious injuries. He submitted that drink had a part to play. The defendants had been drinking prior to therobbery. There was no forethought or planning and it was fairly unsophisticated.
21. I did not accept this. The three defendants went into the 7-Eleven convenience store at about 3 am. They each wore surgical masksand jackets with “hoodies”. The “hoodies” covered their heads when they entered the store. The only purpose must have beento conceal their faces. D1 came equipped with chilli powder to use on the staff of the store and he did use it. He threw it inthe face of Mr Lee towards his eyes.
22. That they had been drinking prior to committing the robbery, in my view, does not amount to mitigation.
23. Mr Beel submitted that all the stolen money had been recovered from the defendants. In fact, not all was recovered. The amountstolen as set out in the particulars of charge was $2,848; the amount recovered from the three defendants, as set out in the admittedsummary of facts, was $2,060.40.
24. It was also submitted that D1 only received $290 from the International Social Services as travel expenses. $1,500 was paid directlyto his landlord and he received food vouchers to the tune of $1,200.
25. It was further submitted that D1 had indicated at an early stage his intention to plead guilty. He had also indicated his willingnessto give evidence against his co-accused, but this was not entertained by the prosecution.
26. Mr Beel submitted a number of authorities on sentence for robberies. He submitted that the one that was most relevant was HKSAR v Chan Sai Chu  1 HKLRD 478, where the Court of Appeal held that for a robbery involving pepper throwing, a starting point of 4 years’ imprisonment was appropriate.
27. He submitted that the starting point in a robbery where an article (chilli powder here) was used to incapacitate a victim, 4 yearswas the appropriate starting point, even where there was more than one robber.
28. He accepted that the fact that D1 was a Form 8 holder was an aggravating factor, but submitted that each case had to be looked aton its own facts.
D2 and D3
29. Mrs Panesar mitigated on behalf of both D2 and D3. She adopted what Mr Beel had submitted on behalf of D1. She submitted that therobbery herein was at the bottom end of criminality. The robbery lasted only two min