HKSAR v. Thapa Dipak and Another

DCCC 936/2019

[2020] HKDC 458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 936 OF 2019

____________

____________

REASONS FOR SENTENCE

1.D1 and D2 plead guilty to one joint charge of robbery, contrary to section 10 of the Theft Ordinance^[1].

2.In summary on 21 August last year Ms Chan, aged 64, was working as a cashier at the Man Wah Amusement Game Centre on the Ground Floor of Man Wah Building, No. 5 Man Ying Street in Yau Ma Tei. 

3.Ms Chan started work that day at around 4 p.m.  A wallet containing $4,000 was kept inside the drawer at the cashier counter for safe keeping[2].

4.At around 4:45 p.m. Ms Chan was sitting in the cashier counter when D1 and D2, both wearing caps and facemasks, entered the game centre.  D2 took out a beef knife from D1’s backpack and brandished the knife at Ms Chan while D1 opened the drawer of the cashier counter and took away the wallet.

5.When Ms Chan tried to grab the wallet D2 pushed her away.  Although some money fell on the floor D1 successfully snatched the wallet and fled together with D2, who dropped the knife on the floor of the game centre as he was leaving.   A total of $1,500 was stolen.

6.The robbery was captured on CCTV which I have had the opportunity of viewing and which has been played in court.   Photographs of the game centre and the knife have been submitted to court.  I have also seen the knife in court.

7.A customer of the game centre also witnessed the robbery.

8.D1 and D2 were arrested the next day in a hut under the Ferry Street flyover in Jordan. The police recovered a black cap, a black facemask and a polo shirt worn by D1 in the robbery.  The backpack carried by D1 and a sling bag carried by D2 in the robbery were also recovered by the police.

9.In video recorded interviews both D1 and D2 admitted committing the robbery.

10.Ms Chan identified D2 in an identification parade as the person who threatened her with a knife. 

Mitigation

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Boyton on behalf of D1, including that D1 aged 24, has a clear record and that at the time of the offence he was unemployed and had fallen into bad company[3].

12.I have read the mitigation letter written by D1[4].

13.I also note that D1’s father was in court when D1 pleaded guilty to show his support for his son[5].

14.I have carefully considered the oral and written submissions of Mr Pannu on behalf of D2, including that D2, aged 22, with no previous similar convictions was at the time a drug addict living under a highway bridge and committed the offence because his salary was not enough to support his drug habit[6].

Guidelines

15.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. 

16.In his written submission Mr Boyton submits that there are strong mitigating factors and asks the court to consider a lower starting point whereas in his oral submission in court Mr Boyton said he was asking for a five year starting point[8]. 

17.In support of his written submission for a lower starting point Mr Boyton referred the court to the reasons for sentence in three District Court cases involving robbery of convenience stores.  I will briefly mention these three cases. 

18.In HKSAR v Yung Chit Wai the sentencing judge actually took five years as the starting point[9].

19.In HKSAR v Chan Kwai Nam the sentencing judge reduced the starting point because the weapon used was not a knife[10].  

20.In HKSAR v Singh Jagit the Deputy Judge reduced the starting point for D1 by reason of his assisting the police in providing the particulars of D2[11].  Assistance to authorities does not reduce the starting point but is to be assessed and where appropriate a greater discount than one third for pleading guilty will be given.  Nor do I find the grounds for reducing the starting point for D2 justified.

21.In my view the sentences imposed were lenient, if not very lenient.  The Court of Appeal have repeatedly stated that deterrent sentences are to be imposed for robbery of convenience stores, which is an aggravating feature of sentence.  Sentences of 6 years’ imprisonment have been upheld for robbery of convenience stores[12].       

22.I do not find the cases referred to by Mr Boyton helpful.

23.In his written submission Mr Pannu urges upon the court that a starting point of five years is appropriate without any enhancement and also urges the court to consider a reduction in sentence by reason of D2’s personal circumstances, including his drug addiction and that he has no similar convictions.  In support Mr Pannu also relied on the sentence of the Deputy Judge in HKSAR v Singh Jagit[13].    

24.In his oral submission in court Mr Pannu said he was not asking for a reduction in sentence and sought to persuade the court not to enhance the starting point beyond five years.

25.I am satisfied there are no grounds to adopt a lower starting point.  With respect most of the factors listed by Mr Boyton are subsumed in the plea of guilty.  The fact D2 has no similar convictions is also subsumed in his plea of guilty.  Commission of robbery because of drug addiction is not a mitigating factor. 

26.The fact that the robbery lasted only a matter of seconds and no one was injured or property damaged is not a matter which in my view warrants a lower starting point. 

27.Although Ms Chan tried to stop D1 from taking the wallet anyone being confronted by two robbers, one brandishing a beef knife, will be frightened.  I am satisfied a starting point of five years is appropriate.  

28.Arguably robbery of an amusement game centre is also an aggravating feature, staff of the centre being vulnerable to robbery.  However, without any evidence large amounts of cash are kept in the amusement game centre, I do not enhance the starting point by reason of the fact the robbery took place in an amusement game centre.

29.Enhancement is however appropriate by reason of the fact there was two robbers.  In R v Mo Kwong Sang the court specifically stated that sentences should be increased where there is more than one robber^[14].

30.Adopting a starting point of 5 years’ imprisonment, I enhance the starting point by 3 months to 5 years and 3 months’ imprisonment. 

31.Giving D1 and D2 full credit for their pleas of guilty reduces the sentence to 3 years and 6 months’ imprisonment.   

Assistance to authorities

32.In his written submission Mr Boyton asks for a greater discount by reason of D1’s offer to give evidence against D2[15].

33.On 11 February 2020 when D1 informed the prosecution in writing that he would plead guilty to the charge he said he wished to provide assistance to the authorities by providing a non-prejudicial statement to give evidence against D2[16]. 

34.In order to properly assess the offer of assistance the court requested to know the response of the Department of Justice to the offer of the defendant.  Mr Boyton said he was unaware of any response.  Mr Lo said there was nothing on his file. 

35.After Mr Pannu had finished his mitigation for D2 and after conferring with D1, Mr Boyton informed the court that the police had just handed to him a statement made by D1 in Lai Chi Kok Reception Centre on 19 February 2020 in which D1 said that he was not prepared to assist in giving evidence against D2. 

Compensation

36.On 16 June 2020 a cashier order in the sum of $1,500 was handed to the police as compensation[17].  Mr Lo confirmed that Ms Chan had cashed the order[18].

37.In recognition of this payment I reduce the sentence of D1 by 1 month to 3 years and 5 months’ imprisonment. 

Co-operation

38.Mr Boyton submits that credit should also be given to D1 for his co-operation with the police in admitting the charge, which Mr Boyton says is the only evidence against D1[19]. 

39.The confession is not the only evidence.  CCTV footage captured the clothing worn by the robbers.  The clothing worn by D1 and the bag carried by D1 when committing the robbery were recovered by the police when they arrested D1.  Having viewed the CCTV footage, the polo shirt worn by D1 (photograph 18) and the Adidas backpack (photograph 17) are clearly seen in the footage. 

40.Furthermore, I disagree with Mr Boyton that the authorities in Hong Kong are divided on whether this would afford a defendant a discount beyond the one-third for pleading guilty. 

41.In HKSAR v Ma Ming the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount[20]. 

42.The Court of Appeal in HKSAR v Ngo Van Nam[21] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

43.I am satisfied there are no further grounds to reduce the sentence of D1 or D2. 

Sentence

44.D1 is convicted and sentenced to 3 years and 5 months’ imprisonment.  

D2

45.D2 is convicted and sentenced to 3 years and 6 months’ imprisonment.   

[1] Cap 210.

[2] Shortly before plea was taken the summary of facts were amended to clarify that the wallet did not belong to Ms Chan.  Mr Lo explained in court that the amendment was made because the wallet and the money inside the wallet belonged to the game centre.   

[3] See §§28-33 of D1’s points of mitigation.

[4] Enclosure 6 of D1’s list of authorities and exhibits.

[5] D1 and D2 pleaded guilty on 19 June 2020.  Sentence was adjourned to 26 June 2020.  D’s father attended court on 19 June 2020 but not on 26 June 2020.   

[6] See §§4-6 of D2’s written submission.

[7] [1981] HKLR 610.

[8] See §§9-17 and 37 of D1’s points of mitigation.

[9] HKSAR v Yung Chit Wai DCCC 736/2014.

[10] HKSAR v Chan Kwai Nam DCCC 417/2014.

[11] HKSAR v Singh Jagit DCCC 649/2018.

[12]  See for example HKSAR v Lam Hoi CACC 105/2016 and HKSAR v Ng Ping Tak CACC 52/2019.

[13]  See §§6, 10-12 and 16-17 of D2’s written submission.

[14] [1981] HKLR 610 at page 611G.

[15]  See §§18-24 of D1’s points of mitigation.

[16] See the letter from the solicitors for D2 addressed to the Department of Justice and dated 11 February 2020.  Enclosure 7 of D1’s list of authorities and exhibits.  

[17]  See §§34-36 of D1’s points of mitigation together with the letter from Mr Boyton dated 17 June 2020 attaching a memo from the police confirming Ms Chan had received the cashier order.

[18] The cashier order was made payable to Ms Chan.  Mr Boyton explained that when those instructing him asked the police who the cashier order was to be made payable to the police replied Ms Chan. 

[19]  See §§25-27 of D1’s points of mitigation.

[20] [2013] 1 HKLRD 813 at §32.

[21] [2016] 5 HKLRD 1 at §41.