HKSAR v. Nurhayati and Another

HCCC 18/2018

[2018] HKCFI 1761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 18 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendants pleaded guilty to one charge of robbery contrary to section 10 of the Theft Ordinance, cap 210.

Facts reveal that the defendants robbed a domestic helper who was living alone at the premises provided by her employer. D1 and PW1 are both Indonesians. D1 was allowed to live in the flat on PW1’s hospitality. D2, a Nepalese, was the boyfriend of D1. D1 had borrowed money from PW1 before and duly made repayments. Then D1 was unable to repay and D2 was sent to inform PW1 of such. D2 made a further request to borrow money, but was declined by PW1. PW1 told D2 that he was not welcome in the flat anymore.

On the day in question, D1 took D2 to PW1’s flat and upon entry D2 took out a spray and sprayed around the flat, causing PW1 to experience headache. And then D2 was seen to go in and out of the toilet with a towel in his hand and kept looking at the towel.

At one stage, both D1 and D2 left the flat but came back shortly thereafter. When they came back, D2 applied the towel to cover PW1’s mouth and kept pinching her nose to prevent her from breathing. PW1 could smell alcohol on the towel. When she managed to free herself, D2 went after her and punched her face and applied the towel on her again.

D1 asked to D2 to stop and indicated to D2 to take PW1’s necklace and wristband. D1 then snatched away the necklace and wristband and they fled, and PW1 fainted. She called her employer when she regained consciousness. After a report was made to the police, PW1 was sent to the hospital and upon examination it was found that she sustained bruises and tenderness over her face, upper lip and both legs. Linear redness was noted on her right cheek. The towel was seized and examined, but no chemical was detected.

Upon arrest, D1 denied any knowledge of D2 stealing anything from PW1. D2 admitted the stealing and spraying of insecticide into a towel to cover PW1’s face to make her unconscious in order to steal.

The jewellery was sold by D1 for around $6,400 and $11,700, respectively.

D1 is aged 30. She has one previous conviction back in 2012. D2 is aged 29, a Hong Kong ID cardholder and of a clear record.

By way of mitigation I was told that D1 completed her contract as a domestic helper back in 2011, but she stayed on in Hong Kong, and having committed the offence of possession of an ID card relating to another and breach of condition of stay in 2012 and served her sentence, she sought asylum in Hong Kong and was a Form 8 holder at the time of the offence.

Counsel asked me to take into account of her plea at the earliest opportunity and that the nature of the offence was not such that as having a serious detrimental effect on the community at large or on Hong Kong’s reputation. Counsel urged me not to enhance the starting point on grounds of her asylum seeker status, and if I do, enhance it at a low rate.

D2’s counsel submitted that after D2 completed his education in Nepal, he came to Hong Kong for family reunion and had completed a hospitality management course in Hong Kong U SPACE. He then worked in restaurants, bars and then construction sites; and there he was introduced to drugs by a co-worker. He got addicted and moved out of his family home and committed the present offence out of character. Counsel told me that D2 is genuinely remorseful and has by now quit his vice habit of drug addiction.

In sentencing the defendants, I have taken into account the facts of the present case, mitigation advanced on their behalf by their counsel, and their guilty pleas.

The Mo Kwong Sang guidelines are not directly relevant to the present case as the courts are not inclined to view the towel as a dangerous weapon.

I refer myself to the case of HKSAR v Cheung Tak Wa CACC 305/2010. The victim there was a sex worker, who was alone in her premises at night. D1 blew fumes from chloroform towards her and when she struggled, he poured chloroform over her face. The Court of Appeal said this: “It was important to consider that the illicit administration of chloroform posed a risk to health and even life in the adverse consequences to the respiratory and cardiac systems”. By contrast, D1’s action did not in fact expose the victim to the more serious consequences that follow inhalation of chloroform. ...the bizarre circumstances of the administration of the chloroform, notwithstanding that the application of a corrosive fluid to” the victim was serious, rendered D1’s culpability less than had he forced the victim to inhale it.”

Therefore, forcing a victim to inhale a noxious substance increases the culpability. In that case, the Court of Appeal was of the view that for the robbery charge, a starting point of 10 years was appropriate. In the present case we do not know the precise nature of the chemical and the government chemist tested the towel used, but no chemical traces was detected. However, it was admitted by D2 that insecticide was sprayed onto the towel, which was used to cover PW1’s mouth to cause her to become unconscious, that is, to overpower her.

Therefore, it is clear that although what was sprayed onto the towel was less toxic than chloroform, it was not completely risk-free as it did cause loss of power and unconsciousness and no doubt could possibly have serious consequence to people with pre-existing conditions. It was sheer luck that the victim did not suffer more serious injuries. It was a planned attack and D2 had viciously covered PW1’s mouth and pinched her nose to prevent her from breathing, thus forcing to inhale whatever was on the towel in order to knock her out for robbery to be carried out. He further assaulted the victim by punching her with fist. In that sense, the action by D2 was more culpable than Cheung Tak Wa’s case.

D1 and D2 were acting in concert to commit robbery. A starting point of 8 years is appropriate. For D2’s act of applying a towel, I enhance it to 9 years. D1 is a Form 8 holder and she already had a previous conviction dated back in 2012. The gravamen of such was whilst she was trying every means to stay in Hong Kong, she has exploited the hospitality of not just PW1, but the community at large. That is an aggravating feature and I enhance her sentence to 9 years.

I shall give each of them the full one-third discount for their early plea and sentence each of them to 6 years’ imprisonment.