HKSAR v. Jagdish Singh

DCCC 69/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 69 OF 2017

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REASONS FOR SENTENCE

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The charge

1.The defendant pleaded guilty to a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

Summary of facts

2.On 22 October 2016, at around 4.40 am, PW1 sat on a staircase in a building in Sham Shui Po.  While PW1 was chatting on her phone, the defendant appeared and attempted to snatch her handbag.  PW1 resisted.  The defendant grabbed her left arm and caused her to fall down to the ground.  She also felt that her necklace was being pulled.  PW1 suffered a 16 cm scratch to her right neck and a 17 x 8 cm bruise to her left upper arm.  Concerning her safety, PW1 gave her handbag to the defendant.  It was a $4,000 handbag containing a $5,000 worth Prada wallet which contained a number of her personal cards, ATM cards and also HK$1,500, 115 RMB, $10 Macau Patacas and other miscellaneous items.

3.PW1 chased the defendant from behind but eventually lost sight of him. CCTV captured the following events :-

(a) the defendant attempted to snatch PW1’s handbag and the ensuing struggle,

(b) part of PW1’s chase of the defendant and

(c) the defendant was seen holding and searching PW1’s handbag.

4.At about 5 am, a police found PW1’s handbag on the pavement outside 146 Nam Cheong Street but her wallet was gone.  The police further found PW1’s wallet on the roof of 146 Nam Cheong Street but without cash.

5.At around 5.04 am, when the defendant came downstairs of 146 Nam Cheong Street, he was stopped by the police and was identified by PW1.  The following items were found on him:-

(a) $1,497.40 cash,

(b) RMB 115,

(c) $10 Macau Patacas.

6.In a record of interview, the defendant admitted that he snatched a black bag from PW1 who was sitting on the stairs of a building.  He said that $350 belonged to him.  The RMB115, $10 Macau Patacas and the rest of the Hong Kong dollars belonged to PW1.  He is a torture claimant in Hong Kong.

Previous conviction

7.The defendant has one previous conviction of assaulting a police officer in May 2017.  At the time of the offence, he had a clear record.

Mitigation

8.The defendant is now 27, single, came to Hong Kong in 2014 and applied for torture claim.  He was detained in 2014 for seven months in the Immigration Detention Centre.  The defence asked for discretion to reduce his sentence. Since he was a torture claimant, he relied on ISS for his daily expenses, $1,800 for rent, $1,200 for food and $200 for transport.  The defence also asked this court to treat the defendant as having a clear record at the time of the offence as his conviction was in 2017.

9.Further, he had been drinking prior to the commission of the offence. It was due to a momentary greediness that he committed the robbery offence. All the properties stolen were recovered.  The victim suffered no loss.

Sentence

10.The offence that the defendant pleaded guilty to was a serious one that the maximum sentence can be life imprisonment.  The defence referred me to a number of authorities.  She asked me to sentence the defendant as lenient as possible.

11.She referred me to the case of HKSAR v Cheuk Pang, DCCC 790/2010.  In that, the defendant received 15 months’ imprisonment after trial for the charge of robbery.  In Cheuk Pang’s case, the taxi driver snatched the telephone from the victim, in doing so, pulled off her earring and caused her ear to bleed.  That was different from the present case in that the defendant grabbed the left arm of the victim and caused her to fall down to the floor.  The victim had the handbag on her left arm.  She was concerned of her safety and surrendered her handbag to the defendant.

12.As to the second case she relied on was The Queen v Chu Kam Hon & Others, CACC 399/1986.  A couple was being robbed by three robbers.  In that judgment, it only said that modest force was applied in the course of the robbery.  18 months’ imprisonment term was substituted for a term of 3 years.  The said Chu Kam Hon’s case was decided before the following cases: -

(a) In HKSAR v Ting Chiu, CACC 174/2003, the Court of Appeal held that for an offence of robbery without weapon, the starting point should be lower than that for an armed robbery of the kind envisaged in the case of Mo Kwong Sang, CACC 359/1981.

(b) While in the case of The Queen v Yau Kwok Tung [1987] HKLR 782, Robert CJ delivering judgment of the case said that: - “A sentence of 4 years is at the top end for robberies where no weapon was being displayed.”

(c) In HKSAR v Lam Ka Hung, CACC 294/2003, on appeal, the Court of Appeal substituted a sentence of 2 years and 8 months’ imprisonment. The female victim had her handbag snatched in the early evening as she made her way to her home in the building she lived. She was pushed to the ground where she struggled with the robber, sustaining a minor abrasion to the finger.

(d) While in HKSAR v Ku Kwok Wai & Others, CACC 14/2012, the Court of Appeal affirmed a sentence of 2 years 2 months. Two robbers, one was a lookout while the other one pushed the victim from behind and snatched her iPhone. The victim was talking on the phone and suffered no injury as a result of the push. No weapon was used.

13.I now turn to the administrative detention.  The defence said that the defendant had been detained in the Immigration for seven months in 2014 due to his status in Hong Kong.  The defence asked for a reduction of the sentence because of this period of detention.  There are a number of authorities in relation to this issue.  According to all these authorities, that it is correct not to exercise the discretion to deduct the sentence if the administrative detention is unrelated to the present offence.  These cases are:-

(a) HKSAR v Khan Aftab, 34/2015,

(b)HKSAR v Khatun Halima, 336/2016,

(c) HKSAR v Villan Palpandi, HCMA 569/2015.

14.According to section 67A(1) of the Criminal Procedure Ordinance, it has clear wordings to that effect. 

15.The defence also agreed that the administrative detention in 2014 was related to his status in Hong Kong.  Clearly, his administrative detention has nothing to do with the present offence.  I refuse to exercise my discretion to reduce his sentence because of the administrative detention.

16.In passing sentence, I bear in mind that it was a robbery case carried out by the defendant alone, without any weapon.  The victim was a 21-year-old young woman.  The items being stolen from her were valuable.  It was an expensive handbag worth $4,000, together with a $5,000 Prada wallet.  Inside her wallet, apart from her personal and bank cards, there was $1,500 cash and a small amount of other currencies.  It was 5 am in the morning in a staircase of a domestic building where most of the residents were sleeping.  The victim was alone, and she was more vulnerable to the kind of coward attack visited by the defendant.

17.The violence being used by the defendant was the pulling of her necklace and grabbing of her left arm.  She suffered injury as a result of this attack and she surrendered her handbag to the defendant.  Her injuries were 16 cm scratch mark on her neck and 17 times 8 cm bruise on her left upper arm.  This is the violence being used in these circumstances constitute the offence of robbery.

18.As I said before, this is a case of unarmed robbery.  There is no set tariff for the nature of this offence.  However, having considered the above mitigating factors and all the authorities of unarmed robbery, I adopt a starting point of 3 years 6 months, reduce the sentence to 2 years 4 months because of the defendant’s guilty plea.