HKSAR v. Rai Bijaya

DCCC 241/2018

[2018] HKDC 1008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 241 OF 2018

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Reasons for Sentence

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1.Mr Rai, the defendant, has pleaded guilty to two offences of robbery. They were committed on consecutive days - 8 January, 9 January - this year. The offences are very similar in their mode of commission.

2.The first offence was on the afternoon of 8 January.  The victim was standing in the street, which is the junction of Reclamation Street and Nanking Street, and then the defendant came up to her and attempted to snatch her earrings by pulling her ears from behind.  The victim made some response and the defendant was only able to snatch the right earring and then he ran away.  The victim’s ears were injured as a result and the value of the earring was estimated at $6,040.

3.Now, the next morning, 9 January, another lady was walking along Canton Road and the defendant again tried to snatch her earrings using both hands by pulling her ears from behind.  He was again only able to snatch one of the earrings, which is the right earring, and then he made his way away from the scene of the crime.  The defendant was eventually chased and seen to run away.  With respect to the second victim, her right ear was injured and the value of the earring was $600.

4.Defendant was eventually arrested for robbery in the early afternoon of the same day, 9 January, and he said immediately, “Sir, I have no money to pay rent.  That’s why I robbed the earrings.  Give me a chance.”

5.He did make a cautioned statement later, where he expanded upon that earlier admission.

6.As far as the defendant’s background, his antecedents are concerned, it says 39 in his antecedents, but I think he is now aged 40.  He is of Nepalese origin and educated to primary level in Nepal, was unemployed at the time of his arrest.  He told the interviewing officer he had two sons aged 20 and 9.  Although the defendant is said not to have a drug dependency, he does appear to experience problems from previous drug taking.

7.The defendant has a history of mental illness. As far as his psychiatric condition is concerned, he is described as having a drug problem with psychiatric complications.  Mental condition is currently stable and he attends outpatient treatment at the Kowloon Hospital.  The defendant has had psychosis arising from his use of cough mixtures and amphetamine in the past, and was admitted to Kowloon Hospital in December 2016.  He has been followed up since then.

8.The psychological report goes to some more detail about the defendant’s background.  He was married in 1996, has two sons, migrated to Hong Kong to work as a construction worker.  Obviously, in that field of employment, employment is unstable and he became used to periods of unemployment.  The marriage ended in 2015.  The defendant lives with his elder son, who is currently a college student, and then he remarried in 2017 to a domestic helper who is also Nepalese, but they do not live together at this point.

9.Now, the defendant started abusing cough mixture since 2008 and he also changed to abusing amphetamines in 2015.  First came to be known to mental health services in 2013:  auditory hallucinations, delusions of control, hearing non-existent voices.

10.The defendant does go into the reasons why he committed the offence.  He would seem to have considerable debts at the time due to his unstable employment and need to satisfy domestic expenditures.

11.The clinical impression is the defendant has a low risk of recidivism to violence at this point, which is encouraging for him, but he is seen to have inadequate problem-solving skills and his financial problems will always apparently be with him.  He needs to maintain stable employment to maintain a low risk of recidivism.  He needs support for counselling and unemployment financial management.

12.But, in any event, what I can take away from that is the defendant has the mitigation of having an existing mental illness that to a certain extent caused him in his decision to commit the robberies and that the defendant, if he can maintain himself in employment, will have a low risk of violent recidivism.

13.Turning to the offences, these are two unarmed robberies committed in close proximity to each other in January of this year. There is a guideline sentence for unarmed robberies and it is said that the upper part of that guideline is one of 4 years’ imprisonment, which should presumably be for a person of clear record after trial, so it would appear that the court should see that as an upper limit for the commission of an unarmed robbery.

14.Now, as far as these robberies are concerned, they were committed by the defendant alone.  They were of a sort of hybrid - partly snatching and partly a genuine robbery - because he went up from behind the victims and pulled their ears and the earring out, a somewhat unusual way of committing the offence, but it does involve the infliction of violence on the poor ladies involved and no doubt was shocking and painful to them.  The value of the goods taken is not high, but it could have been.

15.Taking all those considerations into account and what I know about the defendant’s background, I consider that on both charges the starting point for sentence should be one of 3 years’ imprisonment, and the defendant is entitled to a deduction for that for his plea of guilty.  So, on Charges 1 and 2, the sentences of imprisonment I will pass are 24 months’ imprisonment; 2 years’ imprisonment.

16.I have to consider the question of overall totality.  Offences are committed on different days.  They could, in theory, be served entirely consecutively, but I consider that would be unjust and somewhat unfair and be too lengthy a sentence for this defendant.  So I must consider to make a proper overall total, because the repetition of the offence is in fact an aggregation of these offences. 

17.What I shall do is order that 8 months of the second charge be served consecutively to the first; the balance concurrently. That leads to an overall sentence for both offences of 32 months’ imprisonment, and that will be the sentence of the court.