HKSAR v. Zahir Ikhlaq Ahmad and Others

DCCC 577/2018

[2019] HKDC 990

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 577 OF 2018

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Reasons for Sentence

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Charges

1.D1 and D2 plead guilty to conspiracy to rob (Charge 1).  D1, D2 and D3 plead guilty to theft (Charge 2).

Facts for Charge 1

2.At about 12:40 a.m. on 14 April 2018, Madam SU (PW1) and her sister Madam SO (PW2) were walking along Tai Hang Street, Yuen Long.  When they reached the Hong Kong Jockey Club Off-course Betting Branch situated at Ground Floor, Tai Hang Building, Nos. 14-20 Tai Hang Street, Yuen Long (“Betting Branch”), D2 who was masked, snatched a paper bag held in PW1’s hand and fled.  The paper bag contained one lunch box and one bottle of drink (total worth: HK$25).

3.Immediately afterwards, D2’s accomplice, who was wearing a hoodie and mask, appeared in front of PW1 and tried to snatch away her shoulder bag but in vain.  PW1 held her bag tightly, and, together with PW2, struggled fiercely with the accomplice.  PW3, a friend of PW1 and PW2, who was nearby, came over to assist. 

4.Later, Dl, who was also wearing a hoodie and mask, appeared and tried to kick PW1 but missed.  D1 and the accomplice fled.  

5.In the course of the struggle, a silver bracelet (later known to be D1’s property) was left at the scene.  The incident was captured by CCTV installed outside the Betting Branch.

Facts for Charge 2

6.Four days later, on 18 April 2018, at about 5:00 a.m., Mr. CHENG (PW4) was driving his taxi bearing registration mark MV6437 (“the Taxi”) in Tuen Mun.  At about 5:30 a.m., at Shui Pin Wai Estate, Yuen Long, D1, D2 and D3 boarded the Taxi and asked PW4 to take them to Tong Fong Tsuen, Ping Shan.  D2 took the front passenger seat next to PW4, while D1 and D3 took the rear seats.

7.At about 5:35 a.m., D2 asked PW4 to drop them off at Ping Kwai Road, Ping Shan. When the Taxi pulled over, D2 suddenly snatched away PW4’s waist bag, which was placed between the front passenger seat and the driver seat, and fled. D1 and D3 fled from the Taxi as well.  PW4’s waist bag (worth HK$60) contained HK$600 cash, a red packet containing an amulet, and a wallet (worth HK$100) containing PW4’s identity card, driving licence, Octopus card, Home Visit Permit, and bank card.

8.PW4 gave chase.  PC 14055 nearby provided assistance.  Soon later, D1 was subdued by PC 11807 at Tsui Sing Road.  PW4’s bag was found beside D1.  D1 was arrested at the scene.

9.PW4 arrived and identified to the police that D1 was one of the 3 South-Asian males who took his bag.   

10.D2 and D3 were later arrested by the police.

Enquiries by the police

11.D1, D2 and D3 made admissions under caution. 

Mitigation

12.D1 is now 18 years of age.  He was 17 at the time of the offences.  He had a bundle of convictions arising from a case in Tuen Mun Magistrates’ Courts.  They involved drink driving, taking conveyance without authority, driving without a licence, driving without third party insurance, driving an unlicensed vehicle and forging/possession of driving/vehicle document on a date in March 2018.  He was sentenced to the Detention Centre in December 2018.  He is still serving time there.  The Detention Centre report before me reflects that he is very much benefitted by the training regime.  I now make a detention centre order in respect of Charges 1 and 2.   

13.D2 is now 16 years of age.  He had a clear record.  He had received police superintendent discretion in October 2017 for shoplifting.  According to the Detention Centre and Rehabilitation Centre Suitability Report, he admitted to have smoked cannabis twice in April 2018 and mid-March 2019 under peer influence.  As reflected in the first probation report, he has been using his 9-month detention to ward off any suggestion for self-reflection and rehabilitation.  He has not regarded his drug abuse as a problem at all.  After the remand for a further probation report, there is a change in his attitude and probation is recommended subject to a bundle of special conditions.  I am going to order probation for 18 months on the terms as suggested by the probation officer, with an extra condition of a progress report before me after 3 months. 

14.D3 is now 19 years of age.  In March 2016 he was put on 2 years’ probation for possession of dangerous drugs.  He did not complete F. 2.  He worked in an unsteady pattern.  He enjoyed good relationship with his parents.  He mixed with undesirable peers.  He was led to abusing dangerous drugs.  Upon getting bail after 9 months in custody, he soon resumed his drug habit.  Despite his drug problems, he had no intention to take part in voluntary residential drug withdrawal treatment.  The probation officer regarded him devoid of self-reflection on his drug and bad peer influence.  Probation was not recommended for a person with such an attitude.  This was his first probation report. 

15.I was informed by his solicitor that D3 might have some misunderstanding of voluntary drug treatment.  As a result, I called for DATC report and a further probation report to give him a last chance to explore probation based on voluntary drug treatment.  Both reports are now before me.  The DATC report confirms that he is a drug dependent.  The probation officer regards that he has little reflection about his drug problem and vice peer influence.  He has no plan for rehabilitation and once again declined the voluntary residential drug withdrawal treatment.  He perceives himself to be able to get rid of drug addiction by his own will power.  He is pre-occupied by the thought that his pre-sentence detention for 9 months (for failing to get bail) will suffice to offset the sentence in our present case.  He is against probation or DATC order.

16.If a term of imprisonment is to be considered, the act of snatching committed with 2 accomplices is a serious kind of theft.  This is the more so as the victim was a night-shift taxi-driver.  I shall take a starting point of 30 months.  After the one-third discount for the plea of guilty, I shall sentence him to 20 months’ imprisonment.

17.On the one hand it is obviously in his interest that his drug problem is solved. On the other hand it is a fact that he had been remanded in custody for more than 9 months.  On the whole I regard it too harsh to impose a DATC order on him after such remand.  I should send him to prison instead.  His sentence is 20 months.