HKSAR v. Raskoti Naresh

DCCC 16/2020

[2020] HKDC 471

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 16 OF 2020

____________

____________

REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of attempted robbery of Ale Jagdish Kumar, contrary to section 10 of the Theft Ordinance (charge 1)^[1] and one charge of criminal damage, contrary to section 60 of the Crimes Ordinance (charge 2)[2].

2.Mr Ale Jagdish Kumar, aged 54, is the owner of Pumori Exchange, a remittance and money exchange shop on the Ground Floor of No. 24 Hi Lee Path in Yuen Long. 

3.Photographs of the money exchange have been submitted to court. 

4.Full particulars of the offence are set out in the amended summary of facts admitted by the defendant on 22 June 2020.  In summary on 13 October last year Mr Ale was working inside the small staff office behind the counter[3].  The door of the office was left open and Mr Ale was working with his back to the door.    

Attempted robbery

5.At around 1430 hours the defendant suddenly entered the staff office and demanded $3,000.  When Mr Ale said he did not have any money and would not give the defendant any money, the defendant became angry, took out a 15-inch long kukri knife from the waistband of his trousers and brandished the knife.  Mr Ale afraid he would be chopped sought to evade the defendant. 

6.A photograph of the kukri knife has also been submitted to court and I have had the opportunity of seeing the kukri knife in court. 

Criminal Damage

7.The defendant then used the kukri knife to chop the marble countertop next to the door of the office causing a crack of about 10 cm on the marble top[4].  The estimated cost of replacement is about $20,000. 

8.Mr Ale, fearing that he was about to be chopped, grappled with the defendant and called out for help.  A few passers-by responded and entered the money exchange at which stage the defendant put the kukri knife back in his waistband. 

9.The defendant was then taken out of the money exchange.  Once outside the defendant loudly threatened Mr Ale not to call the police and then fled along Hi Lee Path.    

10.Mr Ale immediately reported the case to the police.  Uniformed police arrived at around 1450 hours and took Mr Ale in the direction of where the defendant fled. 

11.Shortly afterwards, on seeing the defendant standing by the railings outside Man Yip Building on Hi Lee Path, Mr Ale pointed out the defendant to the police. 

12.The police intercepted the defendant.  During enquiries the defendant squatted down and when getting up pulled out the kukri knife.  PC 19488 immediately drew his service revolver and warned the defendant to drop the kukri knife.  The defendant was then subdued and handcuffed. 

13.The arrest of the defendant was captured on CCTV. 

14.Police investigation discovered one palm print of the defendant on the glass window inside the staff office.

Mitigation

15.In passing sentence, I have carefully considered the oral and written submissions of Mr Mitchell, including that at the time of the commission of the offence the defendant was addicted to drugs and had consumed a small quantity of ice and some cannabis the day before[5].

16.The defendant says that he was celebrating the Dashain Nepalese festival and had consumed a lot of alcohol.  Worried that he did not have enough money to purchases a goat for slaughter during the celebrations, the defendant spurred on by his drunken state decided to go to the money exchange to get $3,000[6].   

17.The defendant cannot be given credit for a clear record having convictions for dangerous drug offences in 2011 and 2017 and theft in 2016.  The defendant last appeared in court on 31 May 2017 when he was sentenced to detention in a drug addiction treatment centre. 

Robbery

18.In R v Mo Kwong Sang the Court of Appeal laid down guidelines for armed robberies^[7]. In an ordinary case of armed robbery where a knife or other dangerous weapon is carried and displayed to the victim the court said that the sentence should normally be five years. 

Aggravating features

19.In Mo Kwong Sang the court suggested that where the robbery involves the invasion of private premises a sentence of six years would be appropriate^[8].    

20.The photographs show a small money exchange with the staff room behind the counter for serving the public.  The door of the staff room, which Mr Ale kept open, was right next to the side of the counter where the customer conducts the exchange or remittance and only steps away from Hi Lee Path[9].   

21.I am not satisfied this is the type of private premises which the court in Mo Kwong Sang had in mind when suggesting a sentence of six years would be appropriate. 

22.Money exchanges are however vulnerable businesses which are known or expected to have large amounts of cash on the premises[10]. Although as pointed out by Mr Mitchell the defendant did not demand all the cash be handed over and only demanded a relatively small sum of money, $3,000[11], I am nevertheless satisfied by reason of the fact that the attempted robbery was of a money exchange an enhancement of the starting point by 3 months to 5 years and 3 months’ imprisonment is appropriate. 

Criminal damage

23.Whilst the defendant may well have acted out of anger[12], I am nevertheless satisfied by damaging the marble countertop with the kukri knife the defendant was also seeking to persuade Mr Ale to handover money.

24.I am satisfied a starting point of 12 months’ imprisonment is appropriate.

Timely plea of guilty

25.The defendant first indicated a plea of guilty to the criminal damage charge prior to the trial date being fixed and is therefore entitled to a full one third discount for his plea of guilty, which reduces the sentence to 8 months’ imprisonment. 

26.The defendant on the other hand only indicated his plea of guilty to the attempted robbery charge last Friday and is therefore not entitled to a full one third discount.

27.In HKSAR v Ngo Van Nam the Court of Appeal stated that subject to the overriding discretion of the judge in sentencing, a defendant who gives the Court or the prosecution an indication of a plea of guilty after plea day and before the first day of trial is to be afforded a discount between 25% and 20%. 

28.In determining the appropriate discount the court further stated that the judge will have regard to the time at which the indication to plead guilty was given and all other relevant circumstances[13].

29.Taking into account no witnesses had to attend court, I am satisfied a discount of 15 months’ imprisonment, which is just less than 24% discount, is appropriate which reduces the sentence to 4 years’ imprisonment.

Totality

30.I am satisfied concurrent sentences are appropriate both offences arising out of the same facts[14].

Sentence

31.The defendant is convicted and sentenced as follows:

CHARGE 1 – 4 YEARS’ IMPRISONMENT; AND

CHARGE 2 – 8 MONTHS’ IMPRISONMENT CONCURRENT TO CHARGE 1;

THE TOTAL SENTENCE TO BE SERVED BY THE DEFENDANT IS 4 YEARS’ IMPRISONMENT.

[1] Cap 210.

[2] Cap 200.

[3] See photographs 13 & 15.

[4] The part of the countertop damaged was inside the office as shown in photographs 7, 8 & 9.

[5] See §§32-33 & 38 of the outline mitigation.

[6] See §§29, 32 & 43 of the outline mitigation.

[7] [1981] HKLR 610.

[8] [1981] HKLR 610 at page 611F.

[9] See photographs 6, 12, 13 & 15.

[10] See for example HKSAR v Mishchenko Oleg CACC 246/2017 at §§8 & 15; HKSAR v Leung Pui & others CACC 349/2014 at §44 and HKSAR v Anees Khiyam CACC 326/2013 at §§5, 8 & 9. 

[11] See §§13-18 of the outline mitigation.

[12] See §§28-33 of the outline mitigation.

[13] [2016] 5 HKLRD 1 at §224.

[14] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.