HKSAR v. Limbu Binod

HCCC 153/2020

[2021] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 153 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Limbu Binod, that is D1, and Sahil Kumar, D2, were jointly charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210. D1 alone faced one count of possession of dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134.

D1 pleaded guilty to both charges while D2 pleaded guilty to the 1st charge, that is the robbery charge before a magistrate and they were committed to be sentenced in the Court of First Instance of the High Court.

The Admitted Facts

The Admitted Facts disclose that a diamond trading company, it will be called victim company, used a particular money exchange company called Wall Street to deal with money deposits. On the day in question, that is 21 September 2018, a male staff of the victim company surnamed Koo was asked by the victim company to bring cash of US$740,000, HK$363,060, and five cheques payable to the victim company to this money changer. Koo asked another colleague in the name of Shankar to go with him, as the amount of cash was large and heavy. Shankar was carrying a light green backpack containing the US$360,000 while Koo carried a black backpack containing the rest of the cash and the cheques.

So when Koo and Shankar left the victim company and D2 was at the entrance of the building and appeared to be on the phone. D2 and another South Asian male, who will be designated as male 4, M4, then boarded a private car with registration number SS3619. The vehicle then arrived at Sung Ping Street. D1 and yet another South Asian male designated as male 3, M3, alighted from the vehicle and walked towards Hok Yuen Street East. Both men were wearing facial masks and caps.

Koo and Shankar walked along Sung Ping Street and turned into Hok Yuen Street East. D1, D2 and M3 were following the two from behind and the vehicle was parked nearby.

Just when Koo and Shankar finished crossing the road, M3 appeared behind Koo and slashed the back of his knees with a 10-inch long knife. D1 and D2 immediately snatched the black backpack from Koo and fled.

Shankar started to run upon seeing what happened and he was chased by M3. M3 cut the back of Shankar’s left thigh with a knife and asked Shankar to surrender the green backpack. Shankar did as told. M3 then fled.

The course of the robbery and the attack on Koo and Shankar was captured by a car camera installed at a nearby vehicle.

After the robbery, D2 and M3 boarded the vehicle but D1 missed it. So he boarded a taxi and alighted at Nathan Road.

D1 was located by the police at a salon about to have a haircut that same night. D1 was found to be a Form 8 recognisance holder when he was asked to produce his document of identity. He was arrested for robbery and two packets containing 5.78 grammes of cannabis was found on his person upon search at the police station.

In the case of D2, he and M3 boarded the vehicle after the robbery. The vehicle was found near Olympian City 2 that same night. A car camera installed in the vehicle parked nearby captured three males, that is D2, M3 and M4 alighting the vehicle. One male took out two backpacks from the rear passenger seat and all three walked towards Olympian City 2.

Police found inside the vehicle, among other things a 10-inch long knife with bloodstains, a red bag containing another knife with paper cover, various items of clothing and a used face mask.

DNA examination on those items found inside the vehicle showed that D1’s DNA was found on a bracelet and a T-shirt, Koo’s DNA was found on the bloodstain on the knife. D2’s DNA was found on the face mask and two items of clothing.

D1 and D2’s fingerprints were found inside the vehicle. D1’s fingerprints were also found on the red plastic bag containing the knife inside the vehicle.

Subsequently, D2 was identified and arrested.

Both D1 and D2 admitted that at all material times, they together with other persons unknown, robbed Koo and Shankar of the cash and cheques particularised. D1 also admitted that he was in possession of the herbal cannabis seized.

Now, the injuries sustained by the two victims and the impact on them. Koo sustained three open wounds: The posterior aspect of both legs and left thigh with active bleedings. The sural nerve in the left calf was found to be cut. He was given walking exercises with physiotherapy on a splint for the left leg. He was hospitalised until 7 October 2018 and was granted sick leave of 34 days. Koo’s wounds healed without complication. The range of motion of the knee was found not to be restricted. Physiotherapy showed improvement and by 3 April 2019 Koo enjoyed full recovery of the injury. He was granted sick leave from 21 August 2018 to 23 December 2018.

From a psychologist report prepared on Koo, I was informed that Koo experienced a mild level of fear for several days while in hospital. He also experienced anger for around five days. After his discharge, he was no longer in fear but was in a low mood as he needed to use crutches to walk and he could not go out alone. Koo continued to improve and felt better emotionally.

After he resumes working, he experienced a low level of fear when he walked past the location where he was robbed. Later his fear subsided. Koo still carried money to make deposits although such occasions are now rare. He did not feel nervous when there are few people around but he experienced a slight nervousness when there were many people at the location. The robbery did not have any significant negative psychological impact on Koo’s emotional functioning.

Shankar sustained a 4-centimretre superficial laceration to the back of his left thigh. I was given to understand that he has left Hong Kong and had returned to his normal life without any particular impact from the robbery.

Authorities submitted

The prosecution submitted originally a total of five cases for my consideration. The first one is the case of Mo Kwong Sang, that is in relation to the sentencing guidelines in armed robberies excluding firearm. The second case is the case of Singh Gursevak, and that is in relation to enhancement consideration for Form 8 recognisance holder in the context of robbery of a proprietor of a money exchange shop. The third case is Yiu Chi Ming and that is in relation to the sentencing consideration of cases involving victims leaving from places in possession of large sums of money. The fourth one is Mok Cho Tik and that is sentencing for possession of dangerous drug. And the fifth one is Castano Arango Jose Reinel and that is in relation to possession of relative small amount of herbal cannabis.

Now, another authority was submitted later to assist me after it was known that D1 originally came to Hong Kong legally as the dependant of his father, but then he became an over-stayer and when no application was made to extend the dependent visa and D1 had launched a non-refoulement claim. In other words, D1 was a Form 8 holder when he committed the present offence and that further authority was the case of Junaid Ahmed and that is in relation to enhancement of sentence for a Form 8 holder and in that case it was said that there was no difference between a mandated refugee waiting for settlement in another country and a torture claimant, both having no right to remain in Hong Kong. And of course it was the prosecution’s submission that the same should apply to the 1st defendant who originally came to Hong Kong legally as the dependant of his father. Those were the authorities given to me.

Background and Mitigation - D1

Now, D1 was born in 1994, so he is now 26 years of age. He is not a first offender. In 2014, he was fined a total of $500 for two offences of possession of offensive weapon under the Summary Offence Ordinance. In 2016, he was sentenced to 4 weeks’ imprisonment for breach of condition of stay. D1 was born in Nepal and he was educated up to Form 6.

D1’s counsel, Mr Trevor Beel, informed this Court that D1 came to Hong Kong to join his family in 2011 when he was 17. His grandfather worked with the British Army and his father was a Hong Kong permanent resident. His father applied for him to enter Hong Kong on a dependency visa. D1 had a Hong Kong identity card and was permitted to work and he had worked as a waiter and a bartender. As D1 could not get along with his stepmother, his father declined to renew his dependency visa. D1 then applied for asylum.

Mr Beel submitted that D1 was not addicted to the drug. He only used the herbal cannabis occasionally.

In mitigation, Mr Beel submitted that with the conviction in this case, it would no longer be possible for D1 to be granted dependency visa or to apply for permanent residency based on the time he has spent in Hong Kong. He will be deported when he is released from prison. Mr Beel submitted that the situation of D1 is different from other Form 8 holders and asked this court to be as lenient as possible when considering enhancement.

Mr Beel also submitted that the criminal record of D1 is not such that the starting point should be enhanced.

Mr Beel accepted that robbery offence is serious and in the present case, there was a joint enterprise. Mr Beel asked this Court to note that D1 was not armed and he did not inflict any direct injuries on any person during the robbery.

In relation to the possession of 5.68 grammes of herbal cannabis, Mr Beel submitted that that was a relatively minor offence and asked this Court to be as lenient as possible, pointing out that the 1st defendant did not have any previous drug convictions.

Mr Beel also made it clear that he had no quarrel with the authorities submitted by the prosecution including the very last one.

D2

D2 was born in India and is now aged 22. He is a Form 8 recognisance holder currently waiting for asylum status verification. According to the antecedent statement prepared by the police, D2 was educated up to Primary level in India and previously worked as a farmer there.

Mr Peter Pannu submitted that D2 was not involved in the slashing of the victim. His role was simply to snatch a bag. D2 had not benefited from the crime. Mr Pannu summarised the case as follows:

(1)  D2 and three others in a joint enterprise robbed two victims in a cash-in-transit robbery.

(2)  A knife was displayed and used, albeit not by D2 on victims who sustained injuries.

(3)  Stolen money was not recovered.

(4)  D2 did not stand to benefit from the crime and the promised payment of $100,000 was never made.

(5)  D2 was a Form 8 holder.

Mr Pannu submitted that according to the guidelines in Mo Kwong Sang, a starting point with enhancement of around 7 to 8 years could not be questioned.

In mitigation, I was informed that D2 co-operated fully with the police and with his assistance, a person involved in the robbery had been identified by D2 and is now facing a charge of robbery and will appear in court this very morning. D2 has indicated he will give evidence against that person when the time comes. Mr Pannu asked me to give D2 a further discount for the positively useful assistance he had given to the authorities.

D2 had written to this Court expressing his deep remorse. He also wanted to openly apologise to both victims in this case. He asked for forgiveness and leniency.

Consideration of the sentence

In Mo Kwong Sang, the Court of Appeal set down guidelines for robberies involved the use of knives and other dangerous weapons but excluding firearms. In an ordinary robbery where the robber displayed a knife or other dangerous weapon to the victim, 5 years is the correct sentence. If physical violence is used, 7 years would be appropriate. If there are other aggravating circumstances including more than one person taking part, the sentence should be increased.

In my view, this is a bad case of robbery. Four persons were involved and carried out the plan. The Admitted Facts shows that just when Koo and Shankar finished crossing the road, M3 appeared behind Koo and slashed the back of his knees with a 10-inch long knife. D1 and D2 immediately snatched the black backpack from Koo and fled. Shankar started to run upon seeing what happened and he was chased by M3. M3 cut the back of Shankar’s left thigh with a knife and asked them to surrender his backpack and Shankar complied, then M3 fled.

I have already mentioned the injuries sustained by both Koo and Shankar. Fortunately, both victims do not suffer any residual disability or adverse impact.

The fact that M3 slashed Koo’s knee from behind shows that firstly, there was an element of surprise in the attack so that Koo was completely caught unaware and was not able to defend himself and secondly, slashing the back of Koo’s knee or any part of his leg was done clearly with aim to stop Koo from chasing after the robbers. The injuries sustained by Koo was fairly serious. After slashing Koo and after D1 and D2 grabbed black backpack from Koo, M3 went on to chase Shankar and he slashed the back of Shankar’s thigh, no doubt also aimed at stopping Shankar from chasing after him and the others.

Although the Admitted Facts show that only M3 was holding a knife and it was M3 who inflicted the injuries on both Koo and Shankar, since this robbery was committed by four persons, including D1, as a joint enterprise, there is not much of mitigation to say that D1 did not hold the knife or he did not inflict the injuries. The same applies to D2 as party to this joint enterprise. Of course, if M3 had been caught, he would have to face a heavier sentence for having actually held the knife and cause injury but of course I also bear in mind that there is no evidence that either D1 or D2 was the mastermind of this planned robbery.

This is a well-planned robbery, with four persons waylaying the two victims. The weapon in the form of a 10-inch long knife was used to attack both Koo and Shankar. D1 and D2 snatched the backpack from Koo immediately after M3 slashed the back of Koo’s knee from behind. They did not stop their act of robbery upon seeing M3 use the knife to attack Koo.

The amount stolen during the robbery was large. Leaving aside the cheques, the cash lost amounted US$740,000 and HK$363,060. The money was never recovered.

Having considered all the circumstances of the case and bearing in mind that the roles played by both D1 and D2 are the same, that they acted in a joint enterprise with the other two, including M3 who was the one who wielded the knife to cause injuries to both victims, and that D1 and D2 were not the mastermind of the plan, I am of the view that a proper starting point for robbery is one of 13 years.

In the case of D1, while he had previous convictions of possession of offensive weapon and breach of condition of stay, I will not enhance the starting point due to his criminal record.

D1 is a Form 8 holder. While he originally arrived legally as a dependent, the fact remains that at the time of the offence, his presence in Hong Kong was unlawful and he was only allowed to stay to pursue his torture claim. The fact that he lodged a torture claim after he failed to have his father support him as a dependent, to me, is an abuse of the process as D1 clearly was not a person under threat of torture. He was making use of the claim to stay on in Hong Kong and he further abuse his position by committing such a serious crime while being allowed by the Hong Kong government to remain to pursue his claim. So I am of the view that his abuse of the position, being a Form 8 holder, is an aggravating factor and I enhance the sentence by 12 months. So an enhanced starting point is one of 14 years which is the same as 168 months.

D1 pleaded guilty at the earliest available opportunity and I will give him the full one-third discount. With the discount, the sentence for the robbery is one of 9 years and 4 months, 112 months.

As for the 2nd count of possession of cannabis, the amount involved was 5.68 grammes. The amount is fairly small and unlike the trafficking of cannabis, there are no guidelines for the possession of cannabis. The sentence is one of my discretion and I am of the view that a starting point of 18 days’ imprisonment would have been appropriate.

D1 pleaded guilty to this Count at the earliest available opportunity and is therefore entitled to a full one-third discount. The resulting sentence after discount is one 12 days’ imprisonment.

Although the possession of dangerous drug is a different offence when compared to the offence of robbery, in the present case I will not order the 12 days’ imprisonment to be served consecutively to the 9 years and 4 months’ imprisonment imposed for the robbery so I order both sentences to be served concurrently.

D2

I have already indicated a starting point of 13 years is appropriate. D2 is also a Form 8 holder and he committed a serious offence while he is a recognisance holder. He was causing harm to the society and is in abuse of his privilege granted by the Hong Kong government in allowing him free movement to pursue his torture claim. I will also enhance the starting point by 12 months for this aggravating factor. So the enhanced starting point is one of 14 years, the same, 168 months.

Apart from his plea, I am satisfied on papers that D2 had provided assistance to the authorities, resulting in the apprehension and the charging of a person involved in the robbery and a mastermind at that. Clearly, the only evidence against that person being involved comes from D2 and D2 had indicated that he will, or he is willing to give evidence against that person. It is impractical and in fact the defence did not ask me to adjourn the case until D2 have finished giving evidence against this other person. D2 can seek further discount upon him fulfilling his promise to give evidence against that other person.

On the other hand, when I consider the amount of discount to be given to the defendant for this assistance he had given, I have to bear in mind that if I give D2 too big a discount now, that might encourage D2 not to give evidence when the time comes. So having done a balancing exercise, I am of the view that a discount of around 40 per cent, that is inclusive of the one-third discount for plea is appropriate. So using the enhanced starting point of 14 years, which is 168 months, a 40 per cent discount would result 100.8 months. I will round it up to 100 months so the sentence will be one of 8 years and 4 months. 100 months will be 8 years and 4 months.

The actual sentence

For the 1st count, robbery, D1 is sentenced to 9 years and 4 months’ imprisonment. D2 is sentenced to 8 years and 4 months’ imprisonment.

For the 2nd count, possession of dangerous drug, D1 is sentenced to 12 days’ imprisonment to run concurrently with the 9 years and 4 months’ imprisonment. So total 9 years and 4 months for D1.