HKSAR v. Gurung Yashik and Another

DCCC 824/2018

[2019] HKDC 1217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 824 OF 2018

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REASONS FOR SENTENCE

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1.The 1^st defendant, Gurung Yashik (D1), and the 2^nd defendant, Gurung Pravat (D2), both appeared before me this morning and pleaded guilty to a joint charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.  The facts of the case were admitted by both defendants and they were convicted accordingly.

The facts

2.According to the Summary of Facts which were admitted by both defendants, at about 10:42 am on 29 April 2018, Mr Cheng Kwok-yau ( “the victim”) was riding a bicycle at the junction of Fung Lok Lane and Tai Pei Tau Path in Yuen Log when D1 and D2 suddenly appeared from behind.  Both defendants pushed the victim off his bicycle, punched him and took away his cross-body bag containing HK$6,000.50 in cash in a hidden pocket and his wallet which contained HK$1,400 in cash, his Hong Kong ID card, a BOC bank card and Home Return Permit.

3.Both defendants fled towards the direction of Kau Yuk Road, Yuen Long after the robbery.

4.The victim immediately made a report to the police.  At the same time, the two defendants were seen by three passers-by walking hastily along Kau Yuk Road towards Tai Tong Road.  The passers-by also saw D1 throwing the cross-body bag onto the ground.  D1 also searched through the wallet while D2 took off his jacket and threw it into a rubbish bin.  D1 then also threw the wallet into another rubbish bin.  Among the three passers-by, one of the passers-by reported the matter to the police while the other two passers-by followed the two defendants.  One of them however remained at the junction to look after the cross-body bag.  In the end, the passers-by followed the defendants to various places and later come to a footbridge near the Transport Plaza in Yuen Long.

5.Finally, the police arrived and the passers-by pointed the defendants out to the police officers.  Upon seeing the police officers, D1 took out HK$2,600 in cash from the right pocket of his trousers and threw the money onto the ground.

6.D1 and D2 were arrested by the police.  The police later recovered another HK$500 in cash from D1 and HK$610.10 in cash from D2 when they were being searched.

7.The victim was later sent to the Pok Oi Hospital for a medical examination.  His injuries were:-

(1) His left scalp, right ring finger and cheeks were tender and swollen;

(2) There were abrasions over his right knee and elbow.

8.The police were able to retrieve the cross-body bag and the wallet. HK$6,000.50 in cash inside the hidden pocket of the cross-body bag remained intact but the HK$1,400 in cash inside the wallet was missing.  The victim’s ID card, bank card and the Home Return Permit remained in the wallet.

Background and the criminal records of the defendants

9.Both defendants are Hong Kong permanent residents and they are of Nepalese nationality.

10.D1 is 35 years old and he was born in Nepal.  At the time of arrest, he was a construction worker.  He has received a high school education in Nepal and he is reported to be a drug addict.  In Hong Kong, he lives together with his mother, brother and cousin in an apartment in Yuen Long.  He got married since 2018 and his wife lives in Nepal.  They do not have children.

11.For D2, he is now aged 29.  He was born in Brunei but he received his secondary education in Nepal.  He was also reported to be a construction worker at the time of arrest.  He, like D1, is also reported to be a drug addict.  In Hong Kong, he also lives together with his aunty and two cousins in Yuen Long. He got married with his wife but the couple live separately and the wife lives in Kowloon.  They do not have any children.

12.Both defendants have two previous but not similar conviction records.

Mitigations

13.In mitigation, Mr Haynes, counsel for both defendants, submitted that the present robbery involved no weapon and minimal force was used resulting in no grievous injury to the victim.  It was also submitted that this was an unsophisticated robbery and that both defendants were unprofessional robbers in that they were foolish and unable to discover the cash inside the hidden pocket of the bag.

14.Mr Haynes described it to the court that the offence was committed by both defendants on the spur of the moment when both were obviously under the influence of alcohol and also drugs.  Mr Haynes said that both defendants were very remorseful and asked the court to be lenient and perhaps adopting a somewhat lower starting point when disposing their sentences.

15.On behalf of D2, Mr Haynes submitted to the court a letter from a churchman to D2 which by and large is a letter of encouragement asking D2 to reform himself after making the mistake and to be a good citizen in the future.

16.Finally, Mr Haynes referred to me for consideration a District Court sentencing case HKSAR v Chen Yongjie (unreported, DCCC 40/2019, 9 May 2019), in which the deputy judge had adopted a starting point of 3½ years in an armed robbery case against a lone female victim.

Sentencing Considerations

17.In sentencing both defendants, I have taken into account the facts of the case, the background and the criminal records of the defendants and all that has been said by Mr Haynes in his mitigations.  It is true that in this case the defendants had not used any weapon in the course of the robbery.  I therefore classify the present offence in the category of unarmed robbery against a lone victim in the evening by two robbers acting in concert together.  As said, the victim was not only pushed on the ground, but also punched by the defendants before his cross-body bag and the wallet were snatched from him.

18.There are no sentencing guideline for unarmed robbery except by stating that for armed robbery cases, the starting point is usually 5 years[1] and therefore the sentences for unarmed robbery should be lower than 5 years.  In the case of an unarmed robbery without the use of any weapon, the starting point was generally no more than 4 years’ imprisonment[2].  If however there are the presence of some other aggravating features, the sentence may well even in excess of 4 years’ imprisonment.

19.In the present case when I sentence both defendants, I bear in mind firstly it is a robbery committed by two robbers with some degree of planning and premeditation.  Here, I rejected the submission that they were acting on the spur of the moment under the influence of drugs and alcohol.  Obviously what they did in that night was to prey on a lone victim in the late evening in the junction of road and, secondly, the victim has been subjected to some degree of violence of punching after he was pushed off from his bicycle before his property were being snatched away.  Fortunately for the victim, the injury was anything but serious with only minor abrasions and swelling.  It is fortunate that he did not sustain any serious injuries, and if that happens, no doubt I would have no hesitation to enhance the sentence.

20.In respect of the sentencing case relied on by both defendants, I must say that firstly the case is never binding on me and here I shall repeat what the Court of Appeal has said in the past repeatedly that the factual basis of sentences of any particular case is unique and reference to the judgment of another sentencing court in another case, even if of similar factual circumstances of which there will be no guideline of sentence is articulated, is actually of very, very limited assistance to the court.

21.In the end, after taking all the factors into account, I decided that I should in this case adopt a starting point of 3 years and 9 months for both defendants.  The only effective mitigation in this case is their pleas of guilty for which they should be entitled to a full one-third discount in sentence.  After reduction, the sentence for each defendant is therefore reduced to 30 months’ imprisonment.

22.Last, but not the least, I would also order a compensation order in the total of HK$2,310.10 to the victim by both defendants.  Both defendants have voluntarily consented that the money which would be returned to them after disposal of exhibits shall be paid towards the victim by way of compensation and therefore I do so order, and order that item number 2, 11 and 12 of the exhibits should therefore be paid directly by the police to the victim upon the disposal of exhibits.