HKSAR v. Hossain Sheikh Afjal

DCCC 895/2020

[2021] HKDC 919

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 895 OF 2020

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Reasons for ruling on half-time submissions
And
Reasons for Sentence

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Introduction

1.The Defendant faces a charge of robbery.  The Particulars of Offence state that he, on 23/5/2020, outside No. 302 Shanghai Street, Yau Ma Tei, Kowloon, in Hong Kong, robbed PAN Hanhui and WONG Chi-keung of one box of durians. 

2.The Defendant indicates that he intends to plead guilty to theft.  The prosecution does not accept this lesser plea.  The trial proceeds on robbery.

3.I rule no case to answer on robbery after hearing half-time submissions.  The Defendant pleads guilty to theft and admits the prosecution’s opening except the reference to the use of a knife a 302 Shanghai Street. 

4.After analyzing the evidence and hearing submissions from the prosecution and the defence, I find the prosecution’s case of the Defendant holding a knife at 302 Shanghai Street not made out.  I proceed with sentencing for theft accordingly. 

Prosecution case at trial

5.There are 2 sets of admitted facts.  There are 5 prosecution witnesses, namely, PAN and WONG, and 3 police officers.  It is not in dispute that: PAN Hanhui (PW1)  and WONG Chi-keung (PW2)  were workers at Tung Kee Fruit Limited situated at the Fruit Market at Yau Ma Tei at all material times. 

6.On 5/23 May 2020, several dozen boxes of durians branded “DURIAN” were placed at the junction of Reclamation Street and Shek Lung Street, Yau Ma Tei. At around 10:40 pm, PW1 saw the Defendant pushing a trolley with a box of the said durians along Shek Lung Street.  As Tung Kee was the only fruit shop selling this brand on that night, PW1 knew that the Defendant appropriated the durians from the pile of boxes belonged to Tung Kee. 

7.PW1 hence gave chase to the Defendant and said the box durians looked like his company’s.  It is not known whether the Defendant was aware of his chase or what he said.  He also sought assistance from PW2 and the duo followed the Defendant to the rear alley at 202 Reclamation Street.  PW1 and PW2 eventually intercepted the Defendant at 302 Shanghai Street.   

8.The aforesaid facts are not in issue. 

9.The fact in issue is whether the Defendant had held a knife when he was confronted by PW1 and PW2 at 302 Shanghai Street.   It is not in dispute that the police had seized a knife, Exh. P6, which they believed to be held by the Defendant at that juncture.  Exh. P6’s blade is 18 ½ cm long, the handle is 12 cm long[1].

10.PW1 says he was grabbing the handle of the trolley as the Defendant was grabbing the box of durians.  At that juncture the box of durians tipped over and fell to the ground.  PW2 grabbed the Defendant’s shoulder.  The Defendant displayed a knife in his right hand.  He did not know where the knife came from.  He estimates that bladed was about 5 ½ inches long and the handle was black in colour.  It looked roughly more or less like Exh. P6.  He became scared and ran away.  PW2 also ran away.  Soon they saw the police vehicle pass by and stop to assist them.  From the shop to 302 Shanghai Street, he agrees with the defence’s estimate that it was about 270 metres going from the shop through the streets to 302 Shanghai Street where he was intercepted.      

11.PW2 says as he grabbed the Defendant’s shoulder, the Defendant drew the knife from the left side of his waist as he (defendant)  flipped open his (defendant’s)  upper garment.  He saw the knife for less than a second when he began to run away.  He did not look back.  He estimates the total length of the knife to be 23 – 24 cm [about 9 – 9 ½ inches] with a black dark in colour.   

12.PW3 is PC 21562 was in a police vehicle on patrol at Shanghai Street when he heard someone cry “Robbery, with knife.”  He saw 3 people grappling with each other.  The Defendant then ran away.  He got off after some colleagues and all joined in the chase of the Defendant.  The Defendant turned right into Man Ming Lane at the junction with Shanghai Street.  He saw the silhouette of the Defendant squatting behind a goods vehicle.  About 30 seconds later, the Defendant ran out towards him.  His colleagues were further down Man Ming Lane and kind of encircling the Defendant from behind the Defendant.  In court he makes no mention of seeing any knife (given that Exh. P6, if it was that knife, was a sizeable one)  held in the Defendant’s hand at 302 Shanghai Street. 

13.PW4 is PC 11338.  He also heard “Robbery, with knife.”  He found a knife behind a light goods vehicle at Man Ming Lane (near to where PW3 saw the silhouette of the Defendant squatting).  The knife is produced as Exh. P6. 

14.PW5 is DPC 21431.  He conducted a cautioned video-recorded interview (“VRI”)  on the Defendant.  At # 588 he referred to Exh. P6 being seized by the police on the ground near the location of the trolley.  He is asked in court why the location of seizure at # 588, namely at 302 Shanghai Street, was different from PW4’s evidence of its discovery at Man Ming Lane.  He accepts that there was a distance of about 40 metres between the two locations.  He explains that the Defendant was not too clear about the names of the streets and the layout, so he had meant to say “in the vicinity” of the area.  He admits that he should have used “in the vicinity”.  He believes that Exh. P6 was actually seized by the police at Man Ming Lane, not 302 Shanghai Street. 

15.The Defendant in the VRI on 25/5/2020 denied holding a knife at 302 Shanghai Street.

Half-time submission

16.The defence makes a half-time submission that the theft, in particular the appropriation, had completed once the box of durians left the shop.  The prosecution submits that the appropriation only completed at 302 Shanghai Street when he was intercepted.  I agree with the defence.  Appropriation was completed when the box of durians was taken away from the shop. 

17.I rule a case to answer on theft, not robbery. 

Re-taking plea for theft

18.As a result of my ruling, the defence asks me to re-take plea from the Defendant for theft.  The Defendant pleads guilty to theft.  He accepts the prosecution’s opening but disputes the holding of a knife at 302 Shanghai Street. I find it an acceptable plea for theft, whether he had subsequently held a knife or not. 

19.The prosecution indicates that the use of knife is an aggravating factor for the sentence.  The defence does not dispute this proposition but argues that the evidence suggests that the prosecution has not proved beyond reasonable doubt that the Defendant had held a knife at 302 Shanghai Street.

20.The prosecution also relies on the Defendant being seen to squat behind a light goods vehicle at Man Ming Lane.  The Defendant disputes that.  I do not find the act of squatting there, if ever taking place, relevant to sentencing.  

21.I consider PW1’s evidence that he had seen the knife.  He does not say how long he had seen it.  I take it that it could not have been long.  This view has to be taken as being more favourable to the defence in the absence of clear evidence one way or the other.  

22.PW2’s evidence is that he had seen the knife for less than 1 second.

23.PW3 and PW4 had heard someone shout, “Robbery, with knife”.  It is not clear as to who shouted.  There is no evidence that the one, whose identity was unknown, shouted was in a satisfactory position to observe a knife being used.

24.PW3 was heading towards the action at 302 Shanghai Street in the police vehicle.  He saw the 3 men grabbling with one another.  If there was a knife, I reckon he would be able to see it.  Unlike PW1 and PW2 being involved in the confrontation, he was in the police vehicle, unperturbed and trained to observe and give an accurate description of what he saw.  In court he makes no mention of knife. 

25.The Defendant in his VRI also denied he had held a knife at 302 Shanghai Street. 

26.I cannot exclude the possibility that there was no knife held by the Defendant at 302 Shanghai Street. 

Sentencing the Defendant

27.The Defendant is 43 years of age, a torture claimant from Bangladesh. It is an aggravating factor in the sentence of a defendant, who being a torture claimant, committed an offence affecting the community at large and having a significant impact on Hong Kong’s reputation.  Drug trafficking is regarded as one of such offences.  The case in point is HKSAR v Sandagdorj Althankhuyag [2014] 1 HKC 206, later applied in HKSAR v Norena Gutierrez Christhian Andres CACC 319/2014.  In HKSAR v Shah Syed Arif CACC 298/2015, the Court of Appeal adopted an increase of about 10%. 

28.This case is akin to pickpocketing where an owner is targeted for not paying close attention to his property.  Here, a trolley was used.  The property was a big box containing durians.  It was night time where he took advantage of the workers working at some distance from the property. 

29.The customary starting point is no less than 12 months.  In HKSAR v Ganbold Chinzorig [2016] HKCU 1417 (HCMA 126/2016), a torture claimant with criminal record was given a starting point of 21 months. 

30.I take a starting point of 21 months.  The prosecution confirms that the Defendant has indicated his stance to plead guilty to theft at the earliest opportunity.  I therefore give him a one-third discount.  His sentence is 14 months.   

31.He has a suspended sentence of 2 weeks for 12 months for theft by shoplifting, imposed on him 17 days before the present offence.  This has to be activated in full and consecutive to his present sentence.