HKSAR v. Ateeq Ur Rehman

DCCC 1022/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1022 OF 2010

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Reasons for Sentence

1. The Defendant stands convicted after trial of one charge of robbery of one mobile phone and cash HK$200 belonging to Warnakulasuriya Pereira Isuru Sanjaya, PW1 at the trial, contrary to section 10 of the Theft Ordinance, Chapter 210 and one count of resisting a police officer in the due execution of his duty, contrary to Section 36(b) of the Offences against the Person Ordinance, Cap. 212.

2. Full particulars of the offences are set out in my verdict delivered on 9 March 2011. In summary, at about 11.40 p.m. on 5 June 2010, PW1 was alone in the public toilet at Kowloon Park in Tsim Sha Tsui, washing his hands at the wash basin. He was carrying his cream coloured knapsack on his back, with one strap over each shoulder. The Defendant came up from behind him and touched his left shoulder and when PW1 turned to look at him, the Defendant asked him in English for HK$1,000. PW1 replied why he should give the Defendant HK$1,000 as he did not know the Defendant nor did the Defendant know him. The Defendant picked up a yellow coloured warning board which was on the ground under the wash basin and hit PW1 in the vicinity of his left shoulder and forearm, causing the warning board to break, and the Defendant then threw the board to the ground and pushed it away with his hand, and then he hit PW1 on his left cheek. He took PW1’s knapsack from his shoulders, holding it and telling PW1 to open the zipper and take out his wallet, which PW1 did. The Defendant took HK$200 from PW1’s wallet, as well as PW1’s mobile phone, which was in the same compartment of the knapsack as the wallet. The Defendant then left the toilet, and PW1 ran out behind him, catching hold of the Defendant from the back by his shirt. The Defendant turned to kick PW1, but missed, and then he hit PW1 on his left cheek. PW1 loosened his grip on the Defendant, and the Defendant ran away. PW1 made a report at the Tsim Sha Tsui Police Station nearby, and he was taken on a police vehicle to cruise the vicinity. At a certain point, they alighted from the police vehicle and continued on foot. He saw the Defendant talking to another male near the MTR exit on Mody Road, and pointed him out to the police officers. The police officers approached to intercept the Defendant and asked him to stop. The Defendant asked in fluent Cantonese what the matter was. He was told by the PC 59064, PW3 in these proceedings, that they had reason to believe that he was connected to a case of robbery in Kowloon Park, and were arresting him for robbery and wanted to search him. The Defendant said that he would not let them search him and he struggled and tried to push his way through the police officers that surrounded him. PW3 and other police officers tried to get him under control by grabbing his arms and PW3 warned the Defendant to behave or he would be arrested for resisting, but the Defendant continued to struggle and tried to leave. He was finally pressed to the ground, and handcuffed by PW3 and another police officer.

3.I have carefully considered all that was urged by Counsel on behalf of the Defendant on the last occasion as well as today.  I also have before me the Background Report that I had asked for, and I have considered its contents.

4.The Defendant is now aged 24 years.  He has a previous clear record.  He lives with his family here in Hong Kong.  His father used to be a textiles salesman for over 20 years, and then worked briefly as a security guard in 2007 when the company closed down.  He has been unemployed in the last two years.  The Defendant’s mother has all along been a housewife.  The family does receive CSSA.  Two of his sisters are married, and his 16 year old brother is a student.  The Defendant studied until Form 3 in Hong Kong, and was then sent by his family to study in Pakistan but he returned to Hong Kong after a year as he could not adjust.  On his return, he managed to stay employed most of the time.  He had worked as a tailor and a decoration worker.  Mr. Lam, who had been employing the Defendant as a casual worker in the last few years described the Defendant as punctual and diligent, and not having problems in relating with other people.  When asked about the offence by the probation officer who interviewed him, the Defendant said he had acted under the influence of alcohol – that he did not know the victim and it was not planned but happened on the spur of the moment, that he had never been in trouble before and asked for a chance to stay in the community and continue with his job.

5.For offences of robbery, the norm is an immediate custodial sentence.  Counsel has submitted that this incident is a tragedy for the Defendant and his family - I do accept that but offences of robbery are viewed seriously by the courts.

6.The Defendant had hit PW1 with the warning board that he had picked up inside the toilet as well as with his hand, and he had tried to kick him as well as hit him on his face outside the toilet.  But no weapons as such were displayed during the robbery.  I therefore proceed to sentence the Defendant on the basis this was an unarmed robbery (see HKSAR v ON ling CACC 386/2004).  The starting point for unarmed robbery is generally no more than 4 years imprisonment, see for example R v YAU Kwok-tung [1987] HKLR 782 as applied in HKSAR v TING Chiu [2003] 3 HKLRD 378; HKSAR v LAM Ka-hung CACC 294/2003 and HKSAR v TSANG Wai-ming CACC 288/2006.  Each case is however to be decided upon its own particular facts and circumstances.

7.  Taking into account that this was a robbery at night, in a public toilet in a public park, and the degree of violence used did not result in any serious injury to PW1, I am satisfied the proper starting point after trial is 3 years and 6 months’ imprisonment.  I can see no grounds to further reduce the sentence.  On Count 1, the Defendant is sentenced to 3 years and 6 months’ imprisonment.

8.For the offence of resisting a police officer, Section 36 of the Offences against the Person Ordinance, Cap. 212, provides that a person convicted of an offence is liable upon conviction on indictment to imprisonment for 2 years.  There are no sentencing guidelines as such.  Here, the Defendant resisted the police officers by struggling and trying to push his way through the police officers that were surrounding him.  He was also unco-operative.  None of the officers sustained injuries.  Taking into account the circumstances of the offence, I am satisfied that a proper starting point after trial is 3 months’ imprisonment.  I can see no grounds to further reduce this sentence.  On count 2, the Defendant is sentenced to 3 months’ imprisonment.

9.These are separate and distinct offences warranting consecutive sentences.  However, I do bear in mind the totality principle of sentence.  The offences occurred very close in time.  I shall order that the sentences for the two offences be served concurrently.