HKSAR v. Mishchenko Oleg

HCCC 180/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 180 OF 2017

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REASONS FOR SENTENCE

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1.On 29 May 2017, the defendant, a Russian national, pleaded guilty in Eastern Magistrate’s Court to a single offence of robbery, contrary to sections 10(1) and (2) of the Theft Ordinance, Cap 210. The particulars of the offence alleged that the defendant, on 24 November 2016, robbed the shopkeeper at the Travelex Currency Exchange Shop at Terminal Two at Hong Kong International Airport of HK$58,220 cash. Following his plea of guilty, the defendant was committed to the Court of First Instance for sentence. The defendant having entered his plea of guilty at the earliest opportunity is entitled to a one third discount to the sentence to be passed on this offence.

2.The agreed facts giving rise to the offence can be summarised as follows.  On 23 November 2016, the defendant arrived in Hong Kong on a flight from overseas on a one-way ticket.  In the evening of the following day on 24 November 2016, the defendant wearing a red cap, approached the Travelex Currency Exchange Shop located in the non-restricted area in Terminal Two at Hong Kong International Airport.  He took out a pointed knife with a blade of about 6 to 7 inches in length from his shoulder bag, and climbed onto the counter of the shop.  The shopkeeper, a 32 year-old female, was the only person attending the counter at the time when the defendant confronted her.  She was scared and tried to escape.  The defendant administered an arm lock to her neck and pulled her back into the counter area. He then pointed the knife at her and said “Money”.  She was scared and in response surrendered the cash of $58,220.  He then took the cash and fled. Several passers-by made a report to the police and followed him as he fled. The defendant attempted to hire several taxis at the airport but the drivers refused to take him as they were warned by the passers-by.  In any event, the defendant tried to make good his escape but a police squad stationed at the airport arrived at the scene.  The defendant was identified by the passers-by who dropped his knife when confronted by the police officers.  He was arrested and the shoulder bag that he was carrying was searched.  Inside was the stolen cash, a black cap, a pair of black gloves and a surgical mask.  

3.It appears that the shopkeeper sustained injuries and was off work for 4 days.  She was found to have tenderness and bruising on her right knee.

4.In a subsequent video recorded interview, the defendant stated, among other things, that he was an unemployed Russian ex-solider.  He came to Hong Kong for sightseeing in the morning on 23 November 2016.  He exchanged money at the shop on that day.  He said he had not purchased a ticket to leave Hong Kong as he had yet decided on his next destination.  He admitted that on 24 November 2016, he put on his red cap and went to the money exchange shop where he jumped over the counter.  He said he did this for fun.  However, he admitted that he held a knife and threatened the shopkeeper.  He said he did not expect to be followed by so many people after the incident.  From this remark, maybe he thought he could get away with it. He said he purchased the knife in Hong Kong for $1,000.  He claimed he was intending to use it for lawful purposes.  However, given the fact that the defendant supposedly came to Hong Kong for sightseeing and purchased the knife the day after he arrived, I find that he purchased the knife with the intention to use it in the robbery.

5.The defendant was positively identified by three witnesses who chased after him and the whole incident of the robbery was captured on a closed circuit television camera that was installed at the shop.

6.Not a lot is known about the defendant.  He is a Russian national who is 45 years old.  The Consulate-General of the Russian Federation in Hong Kong has confirmed that he has no previous criminal convictions in Russia.  He claims he graduated from a military academy in 1995 and worked as an artillery officer until 2000.  He claims that after his period of military service, he was unemployed and lived on his pension.  He claims he is divorced and has no contact with his ex-wife.  He also claims that at the time of the offence he lived in Russia with his 11-year-old son.

7.Mr John McNamara, who appears on his behalf, has informed the Court that the defendant’s son is now living with his ex-wife as a result of this case.  He submits that this is an unusual case as the defendant had no chance of getting away with it and that the defendant has no explanation for why he did it.  He notes that the defendant had US$800 and HK$821 on him at the time of the offence.  He is instructed that he also had a large quantity of US dollars in a safe at the hotel where he was staying and access to funds in a bank account that he held.  I am informed that the US dollars was in fact in a bag at the hotel.

8.Mr McNamara accepts that the term of imprisonment of 5 years as the usual benchmark for armed robbery should be subject to enhancement for two aggravating factors, namely that violence was used, even though short lived and minimal, and that a currency exchange shop was the target of the robbery. 

9.The seminal sentencing guideline case for armed robbery is Mo Kwong-sang v R [1981] 1 HKLR 610.  The Court of Appeal suggests various levels of terms of imprisonment depending on the factors that are present that aggravate the offence. 

10.The Court made it clear that the guidelines were applicable to cases where knives and other dangerous weapons were used but not to firearms for which severer sentences would normally be imposed.  The Court went on to explain that the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be in the range of five years’ imprisonment.  The Court said that six years’ imprisonment would be appropriate if the robbery involved an invasion of private premises, including business premises, and that seven years’ imprisonment should be considered if any physical violence is used on any of the victims, such as tying them up.  The Court also emphasised that the suggested sentences should be increased if there are any other aggravating factors.  The Court said:

“Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.”

11.The Court went on to say:

“Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

12.In the present case, the following factors are relevant to the seriousness of the armed robbery involved. 

(1) The defendant was a visitor to Hong Kong who committed the robbery within 24 hours of his arrival. HKSAR v Obiagwu [2011] 1 HKC 453, at paragraph 14.

(2) The defendant had targeted a vulnerable business, a foreign exchange shop, which would be known or expected to have large amounts of cash on the premises. The defendant had attended the shop the previous day. HKSAR v Yiu Chi Ming,CACC 472/2011, unreported, at paragraph 65; HKSAR v Anees Khiyam,CACC 326/2013, 11 December 2013, unreported, at paragraphs 8 and 9.

(3) The foreign exchange shop was located in commercial and public premises at Hong Kong International Airport.

(4) The defendant had purchased a knife on the day of the robbery which I find was purchased with the intention to commit the armed robbery. The defendant wore a red cap and had with him gloves and a surgical mask. It would appear he wore the red cap in order to conceal his identity. The robbery was thought out and planned.

(5) The defendant robbed the shop which was attended to by a lone female.

(6) The defendant was armed with a knife which he used to threaten the female shopkeeper. The defendant also used physical violence on the female shopkeeper who sustained minor injuries. The female shopkeeper’s safety and life were put in danger.

(7) The defendant stole a large sum of cash, $58,220.

(8) In an attempt to escape, the defendant armed with the knife terrorised taxi drivers in order to take him away from the scene.

13.Taking into account the relevant guideline principles and the factors that I have identified above, I adopt a starting point of 8 years’ imprisonment, which I will reduce by one third for the defendant’s guilty plea at the earliest opportunity to 5 years and 4 months’ imprisonment. 

14.The defendant is sentenced to 5 years and 4 months’ imprisonment.

Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Mr John Patrick McNamara, instructed by Massie & Clement, assigned by Director of Legal Aid, for the defendant