HKSAR v. Muhammad Akram

DCCC423/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 423 OF 2012

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Reasons for Sentence

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1.The defendant has been convicted of one charge of robbery after trial. I will not repeat here the facts in details which have been stated earlier this morning in the reasons for verdict.

2.The robbery, very simply, occurred shortly after midnight on 7 March 2012 in a male public toilet in Hung Hom.  In the course of the robbery the defendant used a glass bottle to hit the victim’s hand, thereby causing minor injury to his left middle finger.  The defendant first asked for $100 only.  When he was given $100 he asked for more.  After the victim gave him all his remaining money, i.e. HK$250 and 100 Thai Baht and hid himself in one of the cubicles in the toilet, the defendant went to the cubicle next to the victim.  Climbing up on the partition in between the cubicles, the defendant demanded the victim to give him his mobile phone.  The victim gave him accordingly. 

3.The defendant was arrested by the police when he was leaving the toilet.  In the video interview for the offence the defendant put up a defence that he was indecently assaulted by the victim. 

Background and Mitigation

4.The defendant is a 26-year-old Pakistani asylum seeker in Hong Kong.  He came to Hong Kong in December 2008.  He is now staying in Hong Kong on the strength of a recognizance form issued by the Director of Immigration.  He has a record for a bindover order of the court not to commit criminal acts involving violence or threat of violence.  His personal background and circumstances as revealed and admitted in his antecedent statement are unremarkable. 

5.In mitigation for the defendant, Mr Pierce, referring to Mo Kwong Sang, submitted that in ordinary armed robbery case the starting point is 5 years’ imprisonment.  He further submits that, other than the weapon used, there is no aggravating features in this case. 

Consideration for Sentence

6.Armed robbery is a serious offence.  The maximum sentence is life imprisonment.  In R v Mo Kwong Sang [1981] HKLR 610, the Court of Appeal said:

“......, the appropriate sentence in ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.”

7.On the other hand, I notice where no weapons are displayed 4 years’ imprisonment was described as being “at the top end of the tariff.”  (See R v Yau Kwok Tung [1987] HKLR 782, which was referred to in HKSAR v Ting Chiu [2003] 3 HKLRD 378.

8.In HKSAR v Au Chi Hang & Ors. CAAR2/2005, [2006], 2 HKLRD 310, the Court of Appeal recognised that the weapon referred to in Mo Kwong Sang can be distinguished into “dangerous” and “non-dangerous” weapon.  It is only the use of a dangerous weapon that brings in the 5 years tariff. 

9.In this case the defendant used a glass bottle to threaten and hit the victim’s hand.  Fortunately the bottle did not break. I will not treat the bottle as the dangerous weapon category as described in Mo Kwong Sang.  However, the fact that a weapon was indeed used causing minor injury cannot be totally ignored.  By sheer luck the bottle did not break, but there was the risk of serious injury if the bottle was broken when it was used.  

10.There are other aggravating features in the case.  The offence was committed at midnight.  Moreover, it was committed in a public toilet.  While the robbery was not committed in a private premises, in which case a starting point higher than 5 years will be considered, it took place in an enclosed area such that it would be difficult for the victim to escape.  Risk of injury was increased.  Moreover, the defendant repeatedly uttered his greedy demand even when the victim hid himself in the cubicle.  Terror to the victim was hence enhanced. 

11.In the circumstances of the commission of the offence, the initial starting point should be 5 years’ imprisonment. 

12.Another aggravating factor in the case is the false report of indecent assault against the victim.  Making a false report of crime to the police is an offence.  The victim was at the risk of being prosecuted for the false report.  For this reason the starting point is enhanced by 3 months to 5 years and 3 months.

13.It was an overwhelming case.  At his own election for a trial the defendant has lost the benefit of getting one-third reduction for a guilty plea.  I cannot see any mitigating factors in his case.

14.The defendant is therefore sentenced to 5 years and 3 months’ imprisonment. 

15.By committing the robbery the defendant was in breach of the bindover order made on 16 March 2011.  Considering the sentence I have passed in this case, I make no order for the breach of the bindover order.