HKSAR v. Singh Sukhman Preet Sanny

DCCC 46/2022

[2023] HKDC 130

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 46 OF 2022

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REASONS FOR SENTENCE

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Charges

1.The defendant faces three charges.  Charge 1 is assault occasioning actual bodily harm, Charge 2 is robbery, Charge 3 is assault with intent to rob.  The defendant pleads guilty to Charges 2 and 3 but not Charge 1.  The prosecution agrees for Charge 1 to be left on the file.

Facts (Charge 2)

2.At around 0450 hours on 26 July 2021, a 61-year-old man surnamed Cheung was walking in Kwun Tong area.  Someone hit him from behind.  Cheung turned around and saw three South Asian males all wearing masks.  One of them told Cheung in Punti that someone paid him $20,000 to beat him up.  He said he would not do so if Cheung would pay him $30,000 instead.  Cheung said he had no money.  The man then told Cheung to give him money or he would beat him up.  In fear, Cheung gave his wallet to the man.  The man took out $2,000 from the wallet and returned the wallet to Cheung.  The man and his two accomplices then left.  At all material times, the two accomplices acted as lookouts. 

Charge 3

3.At around 0530 hours on 7 August 2021, a 55-year-old man surnamed Yung was walking in a subway near Choi Hung Estate.  Two South Asian males approached him.  They were wearing masks.  One of them shouted at Yung and asked him to take out his money in Punti.  He also grabbed Yung’s neck and punched Yung’s head several times.  The other man also punched Yung’s head a few times.  The two assaulted Yung for about five minutes.  Finally, Yung fell onto the ground.  The two men then fled. 

4.Yung suffered abrasion on his right elbow and redness on his right hand.  There were a 4-centimetre scratch mark on his nose near the left eye and tenderness on the back of his head. 

Arrest

5.On 10 August 2021, the police arrested the defendant at his home.  Under caution, the defendant admitted that he acted as a lookout.  In Charge 2, he said it was Jordan who assaulted the victim and Hamza took the money. 

6.In further interviews, the defendant said that he acted under Jordan’s suggestion in Charge 2, and in Charge 3 he said it was Jordan who hit the victim first. 

Record

7.The defendant is an Indian born in Hong Kong in August 2002.  He was educated here.  He has a clear record before. 

Mitigation

8.The defendant is now aged 20.  When he committed Charges 2 and 3, he was almost 19.  Even now, the defendant is not yet 21 but defence counsel does not ask the court to call for any report.  She rightly points out that Charges 2 and 3 are excepted offences under Schedule 3 of Cap 221, the Criminal Procedure Ordinance.  She further says that the defendant prefers to be sent to the prison. He has been in custody for 17 months. 

9.Counsel says the defendant had worked as a waiter and construction worker.  Before his arrest, he lived with his parents and brother. 

10.Counsel says the defendant committed the two offences under the influence of two undesirable friends, Jordan and Hamza.  In Charge 2, it was Jordan and Hamza who assaulted the victim and took the money.  The defendant only looked as a lookout.  In Charge 3, it was Jordan who assaulted the victim firs; the defendant followed suit. 

11.Counsel points out that there were no weapons used in either incident. The victim in Charge 2 suffered no injuries while the victim in Charge 3 was only slightly injured. 

12.Counsel says there is actually no clear-cut evidence to pinpoint the defendant except for his frank admission made to the police.  Prosecutor confirms that is the case. 

13.Counsel points out that the defendant has pleaded at the earliest opportunity. 

14.Counsel mentions two cases: HKSAR v Ting Chiu and Another, CACC 174/2003, and HKSAR v Thapa Ramkishna and 3 Others, CACC 375/2003.  Counsel says the starting point for Charge 2 should not be more than 4 years’ imprisonment while that for Charge 3 should be no more than 3 years.  She concedes that Charges 2 and 3 are separate offences but she asks the court to consider the issue of totality. 

Sentence

15.The defendant is aged 20 now.  He committed two serious offences, namely, robbery and assault with intent to rob. 

16.According to Schedule 3 of Cap 221, Charges 2 and 3 are excepted offences.  That means the court can send the defendant to the prison without calling for any reports even though he is not yet 21.  Actually, Defence Counsel does not ask the court to call for any report.  She points out that the defendant has been in custody for 17 months.  She further says the defendant prefers to be sent to the prison rather than to be sent to any institution. 

17.In the circumstances, I do not think it is desirable to call for any report despite the defendant is still of young age. 

18.The defendant committed Charges 2 and 3 in the early hours on two separate days in less than two weeks.  In Charge 2, he had two accomplices.  In Charge 3, he had one. 

19.The victim in Charge 2 was assaulted but he was not injured.  He was robbed of $2,000.  The victim in Charge 3 was injured though not seriously.  He lost no money.  Nevertheless, I am sure both victims were deeply frightened. 

20.The defendant is young and has a clear record before.  He pleads guilty at the earliest opportunity.  He made frank admission to the police when he was arrested. 

21.In the circumstances, I think the right starting point for Charge 2 is one of 3 years and 9 months’ imprisonment.  For the defendant’s frank admission made to the police which led to his being prosecuted and finally convicted, that starting point would be reduced to 3 years and 6 months.  The defendant pleads guilty in time.  He is entitled to a one-third discount.  On Charge 2, he is sent to prison for 2 years and 4 months, ie, 28 months. 

22.Charge 3 is not robbery but assault with intent to rob.  Some view it as a lesser offence than robbery. Yet I find there is little distinction between the two.  The victim lost no money but he was demanded of money before he was assaulted.  Indeed, he was hit for about five minutes before he fell to the ground.  He was injured though not seriously. 

23.Counsel says in Charge 3 it was Jordan who hit the victim first. However, it matters little who hit the victim first.  It was a joint enterprise between the defendant and Jordan.  In the circumstances, I think the right starting point for Charge 3 is one of 3 years and 6 months’ imprisonment. Again, for the defendant’s frank admission made to the police, that starting point would be reduced to 3 years and 3 months.  The defendant pleads guilty in time.  He is entitled to a one-third discount.  He is thus sent to prison for 2 years and 2 months on Charge 3, ie, 26 months. 

24.I consider that the total term of the two offences should be one of 40 months after plea.  I thus order 12 months of the 26 months’ imprisonment for Charge 3 to run consecutively to the 28 months imposed for Charge 2, resulting in a total term of 40 months for the two counts after plea.