HKSAR v. Raman Kumar (also known as Raman Kumar)

DCCC 974/2020

[2021] HKDC 630

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 974 OF 2020

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Reasons for Sentence

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1.The defendant has been convicted of the 1st, 3rd, 7th, 8th and 9th charges on this indictment. Charges 1 and 3 are charges of theft. Charges 7 and 8 are charges of possession of identity cards relating to another person which relate to identity cards taken at the times of the thefts in Charges 1 and 3. Finally, in respect of Charge 9, an offence of going equipped for stealing, which related to the possession of a blade and a cutter which was seized from the defendant at the time of his arrest.

2.The facts are agreed.  I will simply state it. In relation to the 1st and 7th offences, a theft related to a victim who was a deaf-mute person who was asleep on a bench in Sai Yee Gardens in Mong Kok and had been asleep since the early hours of the morning.  When he woke up, he detected that his mobile phone had been taken, it had been in his right trouser pocket, his wallet with his Hong Kong Identity Card and Home Visit Permit had also been taken, and the right back pocket of his trouser had been cut.  That offence occurred on 22 June 2020.

3.On the next day, 23 June 2020, another victim fell asleep on the floor of a green minibus outside the Pioneer Centre in Prince Edward, in Kowloon.  He fell asleep in the small hours of the morning and woke at about just before 5 o’clock.  He discovered that his black Gucci wallet with his Hong Kong Identity Card was missing and also his mobile phone, an iPhone 10, was missing and had in fact been stolen.

4.The defendant was arrested on the same day, on 23 June 2020, at about 5.26 in the morning, seen acting furtively in Lai Chi Kok Road.  He was arrested and seized.  The identity cards of the victims, who are now PW1 and 2, were found on the defendant together with a Home Visit Permit in the name of PW1.  A cutter and blade was found (that is the subject matter of Charge 9) and a black Apple iPhone 10.  We know now that the Hong Kong identity cards seized were genuine ones and that the Home Visit Permit and identity cards related to the first two victims.  The iPhone 10 retrieved was also related to PW2.

5.The defendant, according to the Agreed Facts, is a Recognizance (Form 8) Holder.

6.His antecedents show that he is, aged 36 years old, received higher school education in India, he was not employed or in receipt of money from CSSA, single.

7.He has a number of previous convictions.  Shoplifting offences in 2016, a burglary in 2017, handling stolen goods in 2017 for which he was sentenced to imprisonment, and also an offence of remaining in Hong Kong without the authority of the Director of Immigration.  The defendant has been sentenced to imprisonment in the past; 2017, to 29 months, and also to imprisonment in relation to handling stolen goods and remaining in Hong Kong charges in 2017 and 2018.  He was released from custody on 14 January 2019.

8.As far as his mitigation is concerned, I am told he is 36 years old and single, he came to Hong Kong in 2014 to make a torture claim, escaping family problems and political and personal difficulties in his homeland.  He has family in India.

9.The defendant has made a full admission to the offences to which he has pleaded guilty.  He saw the individuals and acted opportunistically to take the items from them at the time obviously these people were asleep.  The defendant had no savings and was relying on government handouts for his livelihood.

10.As far as the approach to sentence is concerned, in respect of the theft offences, there are no actual tariffs for that kind, or guideline sentencing, for that kind of offence.  However, it has been pointed out to me in the case of HKSAR v Ng Ah Shan at CACC 138/2017, walking away with another’s property has been described to be the same or similar to a pickpocketing offence, so the court should approach these offences, that is the 1st and 3rd charges, as if they were similar to pickpocketing offences.

11.For possession of identity cards relating to another person, that is the Charges 7 and 8, principles can be found from HKSAR v Li Chang Li, [2005] 1 HKLRD 864.  On a guilty plea, a sentence of 12 months’ imprisonment would normally be imposed where a card is not displayed or used for seeking illegal employment or extending stay.

12.As far as going equipped for stealing, sentences are generally at large in those offences.  In this case the defendant had a blade and a cutter and it would appear that in relation to the 1st charge, a blade or cutter was used to cut the trouser pocket of the victim.

13.Also, in respect of these offences, the defendant has previous convictions for dishonesty.  That would be, and is, an aggravating factor in relation to the dishonesty charges.  Furthermore, the defendant is a Form 8 holder, which again is an aggravating factor in relation to the offences involving dishonesty.

14.My approach to sentencing will be as follows. In respect of Charges 1 and 3 - these are the offences of theft, my initial starting point for sentence will be one of 12 months’ imprisonment.  I must take into account the aggravating factors of the defendant’s previous convictions to similar offences and the fact his status as a Form 8 holder are aggravating factors in relation to that charge, leading to a starting point of 18 months’ imprisonment.  After deduction for the defendant’s plea of guilty, there will be a sentence of 12 months’ imprisonment on the 1st and 3rd charges.

15.As far as the 7th and 8th charges are concerned, I see no reason to depart from the sentences proposed by the Court of Appeal in HKSAR v Li Chang Li.  On the 7th and 8th charges, on each charge there will be a sentence of 12 months’ imprisonment.

16.On the 9th charge, I do not see in that case it is necessary to elevate the starting point for sentence having regard to the two factors of a Form 8 holder and dishonesty.  I shall simply take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for his plea of guilty.

17.I must now determine an overall total sentence for this series of offences committed over two days on hapless victims.  I shall take an overall sentence for this series of offences at 26 months’ imprisonment.  I shall achieve that by ordering that the 1st and 7th offences to be served concurrently to one another, the 3rd and 8th offences to be served concurrently to one another but consecutively to the 1st and 7th offence.  As far as the 9th offence is concerned, 2 months of that offence will be served concurrently to the existing sentences and 2 months consecutively, leading to an overall total of 26 months’ imprisonment.  That will be the order of the court.