HKSAR v. Tamang Mahesh and Another

DCCC 870/2018

[2019] HKDC 727

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 870 OF 2018

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REASONS FOR SENTENCE

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1.Both defendants were convicted of a charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

Facts

2.At around 7 am on 14 August 2018, victim, an old man aged 80, was walking down the stairs in MTR Yau Ma Tei Station when D2 suddenly pressed onto him from behind and snatched his Samsung phone, valued at around HK$3,000 and Hong Kong Jockey Club Priority Card inside his left front shirt pocket.  Victim grabbed D2’s hand but D2 pushed him onto the ground before fleeing.

3.D1 then approached victim and helped him up.  Victim wanted to chase D2 but D1 held onto him tightly.  D1 also pretended to chase after D2.  Victim tried to follow them but was unable to catch up.

4.Later, on the same day, D2 was arrested and the smartphone was found. Under caution, she admitted the offence and said she needed money. 

5.D2 also admitted this offence in a video recorded interview.

6.D1 was later also arrested and admitted under caution, inter alia, that he blocked victim and pretended to help him up, also pretended to chase D2 but in fact ran off and met up with D2. 

7.Victim as a result suffered tenderness in the left hip and abrasion on his left leg.

Criminal record

D1

8.D1 has six previous convictions, four relating to shoplifting and two relating to dangerous drugs.  His last conviction was possession of dangerous drugs of which he was sentenced to DATC.

9.D2 has one previous relating to dangerous drugs and she is now serving in a DATC.

Mitigation

10.Mr Percy, counsel for D1, submitted that D1 is aged 32, married but his wife had deserted him for Nepal.  D1 was born in Nepal and came to Hong Kong to join his parents in 1997 but his family emigrated to England in year 2016, leaving him and his younger sister in Hong Kong, who seldom contacted the defendant.

11.D1 has received education up to secondary school in Nepal.  He was last discharged from DATC on 25 April 2018 and was unemployed at time of offence.

12.Mr Percy submitted that D1, having been in remand for 7 months, was deeply remorseful as to what he has done.  He handed a letter written by D1 to court.

13.It was said that his father was ill in Nepal and needed daily medical attention and so he was in need of money to remit back home, and since he was unemployed at the time he therefore foolishly resorted to the commission of the present offence.

14.It was also said that D1 had no idea that D2 will push the victim on the ground and that the injury suffered by the victim was minor and that the mobile phone was recovered.

15.He urged this court to adopt a sentencing starting point of 3 years. 

16.Further, in view of the guilty plea of D1, he asked this court for a one-third sentencing discount.

D2

17.Mr Sherry, counsel for D2, submitted that D2 is aged 24.  She is single and had received education up to Year 10. 

18.D2 was born in Nepal and came to Hong Kong in year 2001.

19.She had previously worked as a kitchenhand, waitress and a construction worker. 

20.It was urged on her behalf that she had frankly admitted the offence and also entered her guilty plea at the earliest opportunity and therefore again she should be entitled to full one-third sentencing discount.

21.It is said that in the present case the only incidence of violence is the pressing of the victim from behind and the pushing of the victim to the ground.  No weapon was used. 

22.It is conceded that D1 also played a part in the robbery, which amounts to an aggravating factor.

23.Mr Sherry also confirmed that D2 had committed the present offence while she had jumped bail in respect of a dangerous drug case.

24.This court was invited to consider the case of HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563 and HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378.

25.Mr Sherry urged this court to adopt a sentencing starting point of 3 years and 3 months.

Discussion

26.Maximum sentence for this offence on conviction upon indictment is life imprisonment. 

27.This was an unarmed robbery as the defendants here did not use any weapon and for an unarmed robbery, the usual sentencing option is one of imprisonment.

28.Considering the circumstances of this case, the sentence of imprisonment is the only appropriate sentencing option.

29.In the Ku Kwok Wai case referred to me, two defendants pleaded guilty to a joint charge of robbery.  There the appellants followed a 17 years old female student when she returned home at 5 am.  One of the appellants kept a lookout outside while the other entered the lobby of the building where the student lived.  She was pushed in the back as she waited for the lift whilst talking on her iPhone and her phone snatched away. 

30.The trial judge took into consideration that the victim was only confronted by one robber, that no weapons were used, that the robbery was committed in a public area, that no injuries resulted and that both the appellants had a clear record.  A starting point of 3 years and 3 months was adopted.

31.The Court of Appeal found that the starting point was appropriate and their appeals against sentence were dismissed.

32.I have also considered a case, HKSAR v Lam Ka Hung, CACC 294/2003.  There the 57 years old victim was on her way home to her flat on the third floor of the building at around 7:15 pm, when the applicant snatched her handbag.  The applicant pressed down on her shoulder and she struggled with the applicant.  They fell to the ground and the victim sustained a minor abrasion to her finger.  The victim’s shouts brought help and the applicant was apprehended.

33.The trial judge adopted a starting point of 5 years’ imprisonment.  The respondent conceded on appeal that the proper starting point ought to have been no more than 4 years in the circumstances. 

34.The Court of Appeal referred to the earlier case of R v Yau Kwok Tung [1987] HKLR 782 where it was said that a sentence of 4 years’ imprisonment for a robbery where no weapons are displayed is “at the top end of the tariff”.

35.The Court of Appeal did not find the applicant’s criminal record as an aggravating factor since none of the convictions were in a way relating to robbery or even violence.  They found that a proper starting point, which both parties accepted, was 4 years’ imprisonment.

36.In our case here, both D1 and D2 took part in the robbery.  It was 7 am and they picked on this 80 years old man whilst he was walking down the stairs in an MTR station. 

37.It is lucky that the pressing and the pushing on the victim and also the fall which ensued, did not result in serious injuries to the victim.  It is however reasonably foreseeable that the victim might, as a result of these fell down the stairs and suffered serious if not fatal injury.

38.The way that the present offence was committed, in my view, was more serious than in the case of Ku Kwok Wai and Lam Ka Hung.

39.This court, however, is aware that the mobile phone had been recovered and the injury to the victim is not serious.

40.The appropriate sentencing starting point in this case, in my view, is 3 years and 6 months.

41.Whilst it is said that D1 did not know that D2 was going to push the victim during the robbery.  This court does think that once you acted in concert with another in snatching the victim’s phone, it would reasonably be foreseeable that the victim might resist and force would have to be applied on him to further the act, and, in circumstances when the victim was going downstairs, serious risk to the victim’s safety would no doubt ensue.

42.Although both defendants have criminal record, they do not have similar convictions in the past and these would not pose as an aggravating factor.

43.In the case of D2, she had committed the present offence while she was on bail for the other dangerous drugs offence.  This amounts to an aggravating factor.

44.The sentencing starting point for D2 is enhanced by 3 months, bringing it to 3 years and 9 months.

45.I would accept that both defendants should be entitled to the full one-third sentencing discount.

46.However, apart from their timely plea, having considered the mitigation done on their behalf, this court does not find other valid mitigating factor.

47.Accordingly, after applying the one-third sentencing discount, D1 is sentenced to 2 years and 4 months’ imprisonment, and D2 is sentenced to 2 years and 6 months’ imprisonment for this charge.