HKSAR v. Ilyas Gul Share Chand and Others

DCCC 946/2021

[2023] HKDC 1025

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 946 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The four defendants in this case have been convicted of one count of robbery. Except for D2 who was convicted after trial, all other defendants had been convicted on their plea and upon the admission of facts. As my findings on the trial against D2 are consistent with those facts admitted by other defendants, I will deal with their sentence in one go.

2.D1, D2 and D3 were, at the time of the offence, under 20 years old. They are Hong Kong residents of South Eastern Asian extraction.  D4 was an older female who came to know D1 at a bar. 

3.D4 at the time was working at a club.  By reason of some personal animosity against a co-worker, she decided to avenge the latter by contracting D1 to assault her.  D1 contacted D3 who then approached D2 to carry out the job together D4 supplied all the information as to where the victim could be identified and located.  She offered cash award for the humiliation and robbery of the victim. 

4.As an added attraction, she also gave details to D1 and D3 about what the victim was carrying at the time and suggested that they, the other defendants, could keep her jewelleries and expensive leather goods she was carrying.  She supplied pictures of the victim and advised them of the places where the victim could be located. 

5.As agreed, D1 assaulted the victim, D3 assisted by taking away the valuables she was carrying.  D2 helped to make reservation of a hotel room where they would be staying after the robbery.  He also was charged with the duty of bringing T-shirts and caps to the scene where all three defendants could wear in order to avoid identification by the police. 

6.While the robbery or the theft and the assault were going on, D2 took a video record of the incident from a distance.  The record was subsequently shown to D4 as proof that the deed had been done so that they could have the rest of the reward money. 

7.D1 played a more active role in the assault of the victim and he introduced D3 to negotiate with D4.  D3 was more than a go-between, he carried out most of the conversations with D4, but he was smart enough to erase his part of the communication.  D2, although he played a relatively minor role, was party to a joint enterprise in committing the robbery against the victim.  After the incident D2 was charged with a task of disposing of the evidence, ie the t-shirts and the caps and the handbag carried by the victim. 

8.As a result of the ordeal, the victim suffered abrasions, swellings, and bruises on her right wrist, left elbow, left little finger, and the right side of her face.  She was admitted to the hospital, treated, and discharged.  She lost her ID card, bank cards, travel cards, jewelleries, cash, and some expensive leather goods, in total to the value of $152,630. 

9.The victim had filed a statement for the purpose of this sentencing exercise.  In it she stated she suffered from psychological issues after the assault.  She had nightmares and she found it unsafe to go out at night.  Given the kind of job she was doing (working at a nightclub), one could imagine that it meant immense inconvenience to her life.  I also take into her financial loss was substantial and none of the lost properties had been recovered. 

10.This is a premeditated robbery carried out with precision.  It took place in a public place at night.  Hong Kong always takes pride in the fact that it is a very safe city.  People can go out at night freely without being fear of violence, especially in areas packed with nightclubs and bars such as Wan Chai.  This incident had caused not only damage to the victim, it caused damage to the reputation of Hong Kong. 

11.This court also take into account that D1, D2 and D3 were all Hong Kong residents but being Southeast Asians, and, by reasons of the difference in their religion and language, it is more difficult to integrate into the society.  Their job opportunities are limited by the fact that most of them are not able to write or speak fluently in Cantonese. 

12.The defendants’ behaviour also reinforced the stereotyped image of some of the Hong Kong people that the Southeast Asian residents tended to form gangs were up to no good.  They have in fact, brought an otherwise honest and law-abiding sector of the population in Hong Kong into disrepute. 

13.This case did not involve the use of arms, but it involved elaborate planning of more than three persons, the use of violence resulting in physical injuries and the consequential psychological issues to the victim.  In considering the possible starting point, the court accepts that it does not fall into the armed robbery category as envisaged in the case of Mo Kwong Sang [1981] HKLR 610 CA. 

14.In the case of Ting Chiu [1987] HKLR 782 CA ([2003] 3 HKLRD 378), the facts involved a robbery by four men on a couple who was hiking.  The victims were relieved of their wristwatches and a small amount of cash.  The defendants were sentenced to 4 years’ imprisonment. 

15.In the case of Ku Kwok Wai [2012] 4 HKLRD 563, a young woman was being followed by two persons into the building in which she lived.  She was then pushed and her mobile phone was taken away from her.  The sentence of 3 years and 3 months had been upheld by the Court of Appeal.

16.In my view, this case is a much more serious one and having considered all the facts of the case, I will adopt 4½ years as a starting point. 

D1

17.D1 had a clear record.  He is now aged 22, educated up to Form 3.  He worked as a security guard.  He pleaded guilty to the charge and he chose to give evidence against D2 in the present case.  I accepted his evidence.  I will not however put him in the category of supergrass, as in this case there are quite a lot of evidence which are apparent from the written record and also from the CCTVs installed in various locations. 

18.Having considered the whole of his mitigation, the only valid factors are that he pleaded guilty and his evidence was accepted by the court and resulted in the conviction of D2.  I will therefore adopt a 40 per cent discount of his sentence.  He is sentenced to 32 months’ imprisonment. 

19.D2 is convicted after trial.  I agree that his role seems relatively minor as compared to the other defendants.  He was not privy to the discussions earlier in the WhatsApps but he had knowingly participated in a robbery.  He is convicted on the basis of being party to joint enterprise and technically, his culpability should be the same as all other defendants. 

20.D2 is a relatively young man.  His role is less involved than the others.  In the circumstances, I would adopt 48 months as a starting point and, in view of his clear record, and the mitigating factors put forward, I would exercise my discretion of clemency and reduce a further 3 months from his sentence.  He is therefore sentenced to a term of imprisonment for 45 months. 

21.D3 was less active at the time of the offence, yet his role was crucial.  He acted as a negotiator with D4 and he is clever enough to delete his conversation or his communication with D4, he was crucial to the hatching of the plan and he was also instrumental in recruiting D2 into the operation. Therefore, I would adopt 54 months as a starting point. 

22.In this case he pleaded guilty and he gave evidence on behalf of the prosecution to secure the conviction of D2.  The court has accepted his evidence and, as I have stated before, I will not put him in the category of supergrass.  I therefore adopt a reduction of 40 per cent.  He is sentenced to 32 months’ imprisonment. 

23.D4 is the one who initiated the heist.  She contacted D1 and D3, she furnished information about the victim, she was the one who harboured animosity against the victim.  And from the communications, she took obvious delight, a sadistic pleasure even, to see that the victim humiliated and suffered. 

24.In her case, I will adopt a starting point of 54 months.  I have taken into account the mitigation put forward by her counsel, none of them constituted any valid reason for leniency.  The only factor to her favour is that she pleaded guilty and as directed by the High Court, I would reduce her sentence down to 36 months’ imprisonment to take effect immediately.