HKSAR v. Singh Gursevak

HCCC 241/2017

[2018] HKCFI 1166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 241 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant was originally charged with three counts; namely, two counts of robbery and one count of possession of an offensive weapon. The prosecution accepted the defendant’s plea of guilty to the 1st count of robbery, and agreed to leave on the court file the 2nd and 3rd counts.

On the first day of trial, the defendant pleaded guilty to the count of robbery in Charge 1, contrary to section 10 of the Theft Ordinance, Cap 210. He admitted that on 28 June 2016 outside Gold Forward Exchange Shop, the Ground Floor, at No 55A Tai Kok Tsui Road, Mong Kok, Kowloon, he, together with an unknown person, robbed Mr Cheung Tit-leung cash of $350,000, a rucksack, a wallet, his Hong Kong Identity Card, his Home Visit Permit, four bankcards, one Octopus card, one iPhone, one mobile phone, one charger and four keys.

Mr Cheung was the proprietor of the money exchange business named and located at the address in the charge. On 28 June at approximately 7.50 pm, Mr Cheung had finished work and was in the process of locking the outer door of his shop. He was carrying cash of $350,000 in his rucksack, amongst the other stolen items. The defendant, and another unknown South Asian male whom I shall refer to as the assailants, approached Mr Cheung from behind and suddenly Mr Cheung felt pain at the back of his right lower leg. He turned around and saw the assailants behind him holding knives.

One of the assailants grabbed his rucksack, while the other raised a knife in a threatening posture. As it was pulled from his back, Mr Cheung tried to grab the strap of the rucksack to take it back, however the assailant chopped his right wrist with a knife causing him to release the bag. The assailants ran off with the property contained in the rucksack along the road. The bag and its contents, including the $350,000, was never recovered.

Mr Cheung was left bleeding profusely; he was taken by ambulance to the Queen Elizabeth Hospital Accident and Emergency Department where he was given emergency surgery under general anaesthesia. The clinical and radiological examination showed the following injuries: near amputation of his right hand at his wrist level, multiple flexor and extensor tendons cut, nerve cut, and carpal bone fracture. There were bilateral cut deep lacerations, an 8-centimetre laceration over his proximal right leg down to the muscle layer, 5-centimetre laceration over his left leg down to his muscle layer, a 4-centimetre superficial laceration over his back.

In the emergency operation, Mr Cheung received Kirschner wire fixation of carpal bone fractures, flexor and extensor tendon repair, nerve repair, exploration and suturing of lower limb wounds. He was discharged on 4 July 2016 and referred to physiotherapy and occupational therapy. The Kirschner wire was removed on 11 August 2016. On 3 November 2016, tightness of his right hand fingers due to the extension tendon adhesion was noted and he was granted sick leave until 8 December 2016.

In the medical report it states that his recovery was complicated by adhesions of the repaired extension tendon for surrounding tissue, rupture of the repaired thumb long extension, and little finger extensor tendon, limiting the fingers’ range of motion. He underwent general anaesthesia operation on 7 April 2017. His fingers’ range of motion had improved and he was scheduled for tendon transfer surgery on 2 March 2018 to improve his left thumb extension, however, Mr Cheung at that time, opted not to have the operation.

On 28 June 2016 near the scene of the robbery a knife was found. It was separated into two parts; that is, a handle and blade. This knife, Exhibit P47, was found to have Mr Cheung’s DNA on it.

The defendant was arrested on 3 July 2016. At that time, he was found to be in possession of a knife with a handle wrapped with gauze with blood stains. The DNA of Mr Cheung was found on that knife.

The defendant was born in India and came to Hong Kong in May 2014. He is 33 years of age and single. He has received high school education in India equivalent to Form 4. He is a Form 8 recognisance holder, commonly referred to as a “torture claimant”. His claim is still pending. He has two previous convictions; one for breach of condition of stay in 2014, and the other for theft in 2015, and was sentenced to 2 weeks and 5 days’ imprisonment.

Mr Donald, counsel for the defendant, mitigated on behalf of the defendant. He accepts that this is not mitigation, but puts forward the reason he committed this offence, was because the defendant was in dire need of money for an operation for his father. The defendant’s excuse is that he is not permitted to work in Hong Kong, and thus resorted to easy money. He says he foolishly helped his accomplice named Harjot and received no benefit but for a bottle of whisky, and that he was used by Harjot. This is difficult to accept given his significant role.

This was an offence of robbery with knives. The leading guideline case is that of Mo Kwong Sang v R [1981] HKLR 610. The Court of Appeal had laid down a 5-year guideline for armed robberies, excluding firearms, in which a knife or some other dangerous weapon had been displayed, stating that further years should be added to the sentence if there were other aggravating factors.

This was a very bad and serious case of robbery. This was a pre-planned vicious, cold-blooded robbery. They targeted the proprietor or the person leaving the currency exchange shop with the correct assumption that he would have with him large sums of money. The ruthless chop made to Mr Cheung’s legs, seriously wounded him before they even snatched his rucksack. This maiming was designed, in my view, to prevent Mr Cheung from chasing after the assailants after they had snatched his rucksack. They targeted Mr Cheung when he was at his most vulnerable, leaving and locking the premises in the evening by himself when his back was turned to them. Mr Cheung was defenceless and wholly unaware that the assailants were even present until he felt the pain on his leg.

Once Mr Cheung tried to grab the backpack after it had been pulled away, one of the assailants then brutally chopped his hand, almost amputating it. The injuries to his hand were severe. The force used fractured his bones, cut through nerves and tendons. The lacerations to his legs were long and deep down to the muscle layer. It goes without saying these injuries were extremely serious. The scars from the injuries and knives are graphically depicted in the photograph, Exhibit P55.

It is the defendant’s case that he did not use a knife to wound Mr Cheung. It is clear that two knives were used to attack Mr Cheung; both knives had Mr Cheung’s DNA on it. Mr Cheung was slashed from behind and on his wrist by two different knives. There were only two assailants at the scene. Mr Cheung saw each assailant holding a knife. The irresistible and only inference is that both the defendant and his accomplice were involved in the brutal wounding of Mr Cheung. However, even, which I do not accept, the serious injuries were not inflicted by the defendant, this does not reduce the defendant’s culpability in this joint enterprise as was clearly stated by the Court of Appeal in HKSAR v Wong Kam [2013] 1 HKLRD 39.

This robbery took place just outside Mr Cheung’s shop whilst he was on the road, or pavement, when he was closing, or locking the door. Although not clearly an invasion of his business property, it was bordering on it as he was standing on the pavement locking the outer door. As was said in Wong and Mo Kwong Sang, common parts of premises such as lifts and staircases is included in either private or business premises. Photos taken from the CCTV footage show Mr Cheung and two accomplices just outside the shop.

In the victim impact report the psychologist mentioned, which goes without saying, that Mr Cheung has experienced a life threatening event involving serious injury. He suffers from physical injuries and lots of pain. He is continually receiving medical treatment and is gloomy about having a full recovery. He remains hyper-vigilant to signs reminding him of the case; he even tensed up and had palpitations when he heard sounds of steps and stomping behind him, even if they were small children. He is miserable about his loses due to his case, namely his business, physical health and sense of security in his life. He presented with anxiety and depressive symptoms in the moderate range.

Mr Donald accepts the seriousness of this robbery. He has submitted the cases of Mo Kwong Sang, HKSAR v Obiagwu [2011] 1 HKC 453, and HKSAR v Chu Kwok Yui CACC 389/2009. Mr John Wright, counsel on fiat for the prosecution, has referred me also to Mo Kwong Sang but also to the cases of HKSAR v Wong Kam [2013] 1 HKLR 610, HKSAR v Kwok Ngai Man Edmund HCCC 14/2011, and HKSAR v Yau Ying Keung HCCC 176/2010.

In the Court of First Instance decision in HKSAR v Kwok Ngai Man Edmund, my learned brother, Longley DHCJ took a starting point of 18 years’ imprisonment. The defendant was sentenced to 12 years’ imprisonment after a plea of guilty. There were serious injuries caused by knives on the victim by two assailants. The principal or distinguishing factor in that case was that the defendant had a previous similar conviction. Longley DHCJ referred to The Crown v Chan Kwai To CA228/1990, noting the observation of the Court of Appeal of another robbery case involving serious injury. I, too, have regard to the same case. Mr Cheung’s injuries, in this case, were extremely serious and that is a very large aggravating factor.

In Obiagwu, that was a cash remittance premises which was robbed by two men using pistol-like objects, knives and threats. One of the victims was hit on the head, staff were tied up and blindfolded, as were two customers who entered the premises, death threats were made. A sentence of 10 years on a guilty plea was deemed appropriate. The Court of Appeal found the judge did not err in setting the starting point at 15 years’ imprisonment.

Defendant, you are a violent man who savagely attacked a lone, vulnerable man who had been known or expected to have large amounts of cash on leaving his business. Each of you had a knife and wounded him. Both of you caused very serious injuries on him. The result on Mr Cheung has been immense as a result of this robbery. You showed no sympathy or concern to your victim; you were, in fact, cruel.

The knives were lethal. Having examined them myself, they were heavy; the blades were at least 12 inches long, they were about 16 and 18 inches long including the handle. A large sum of cash was taken. This was, as noted in Obiagwu, akin to a bank or jewellery shop robbery; although not within the premises, it was just bordering the premises when Mr Cheung was locking up the premises.

In all the circumstance of this case, and taking into account the aggravating factors, I consider a starting point, had you been convicted after trial, of 15 years’ imprisonment. It is well settled that in certain circumstances the commission of an offence by a foreign national who is the holder of a Form 8 recognisance should be treated as an aggravating factor.

This offence of robbery committed justifies taking your immigration situation as an aggravating feature. I consider an enhancement to the starting point of 2 years’ imprisonment to be appropriate. Therefore, in the circumstances of this offence, I adopt a starting point of 17 years’ imprisonment had you been convicted after trial. The only mitigating factor in this case is your plea of guilty which has saved Mr Cheung the trauma of having to face you, recounting this horrifying event.

Defendant, you pleaded guilty on the first day of the trial. You informed the prosecution on 28 March of your intended plea of guilty, approximately two weeks before the first day of trial. Upon your plea bargain with the prosecution, they accepted your plea of guilty to the present charge of robbery and agreed not to proceed with the two remaining counts, but for those to be left on the court file.

You indicated to this court that you would plead guilty one week before the first day of trial, on 4 April 2018. This is not a timely plea of guilty. The Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 stated at paragraph 214:

“The range of discount to be afforded to a defendant who indicates to the court or the prosecution that he intends to plead guilty after trial dates have been fixed but before the first day of trial, lies between the 25 per cent discount to 20 per cent discount.”

I accept that the prosecution were notified before the first day of trial, and thus the witnesses were not required to attend court. This was a very late indication of your plea of guilty, and all matters were ready for trial. I do accept, however, that you should be entitled to slightly more than a 20 per cent discount; you are to be afforded a 22 per cent discount from the starting point. In the circumstances defendant, you are sentenced to 13 years and 3 months’ imprisonment.

I shall now leave Counts 2 and 3 to be left on the court file and not to be proceeded with without the court’s leave.