HKSAR v. Anees Khiyam

DCCC 1184/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1184 OF 2012

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Chapter 210.

2.In summary on the 16 July 2012 at around 9:25 a.m. Mr Chan Fuk Kuen, the manager of a grocery shop, went to the Wing Shing Exchange Company Limited on Prince Edward Road to wire $450,000, which he carried in a recycle bag.  On arrival at Wing Shing a South Asian male suddenly approached Mr Chan from behind and snatched the bag containing the cash. 

3.As Mr Chan held on to the bag he was dragged to a nearby alley where two other South Asian males helped push Mr Chan to the ground.  One of the three South Asian males then picked up around $10,000 which had fallen out of the bag after which the three South Asian males all fled.   CCTV cameras showed a fourth South Asian male together with the three other males.

4.Three days later the defendant was arrested.  Under caution the defendant admitted, inter alia, that on the morning of the 16 July he was telephoned at home and asked to “go down and do some work”.  The defendant went downstairs where he met the caller together with two other males.  The defendant was asked to join them to wait for a male who they would beat up and take his money.  When the male (Mr Chan) arrived the four of them all walked towards him.  One of the four snatched Mr Chan’s bag during which money fell out of the bag.  The defendant picked up the money and then all four ran away.  The defendant said he was paid $200 for his part in the robbery.

5.No knife or weapon having been used the proper basis for sentence is that which is appropriate for an unarmed robbery.  The starting point for unarmed robbery is generally no more than 4 years imprisonment, for example see R v Yau Kwok Tung [1987] HKLR 782 as applied in HKSAR v Ting Chiu[2003] 3 HKLRD 378. 

6.There are cases however where sentences higher than 4 years imprisonment have been upheld for unarmed robberies, some well in excess of 4 years.  In HKSAR v Yiu Chi Ming & another CACC 472/2011 a sentence of 6 years imprisonment was upheld for robbery of $440,000 which the victim had just withdrawn from the bank.

7.The Court of Appeal in upholding sentence emphasised that the robbery was not an ordinary unarmed robbery when a robber took, from the victim, a small amount of cash; that the victim had been targeted knowing or believing he must have withdrawn money from the bank; and that the robbery was well-planned and carefully executed with the use of a get-away car that had false number plates.

8.Save for the use of a getaway car there are similarities with the present case, including there were at least three robbers; the robbery was clearly well planned as the robbers were waiting for Mr Chan to arrive; and involved a large amount of cash although the robbers only managed to take $10,000.  In my view this robbery is also not an ordinary unarmed robbery and the observations of the Court of Appeal that those who withdraw large sums of money from the bank are vulnerable equally applies to those who use exchange shops to wire large sums of money.  As can be seen from the photographs the transaction was conducted whilst Mr Chan was on the street and not in a secure setting,

9.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Sadhwani, including that the defendant, who is a torture claimant, had no source of income and therefore committed the offence due to financial reasons. I take into account that the defendant has no criminal convictions unlike D2 in Yiu Chi Ming.

10.Taking into account that there were at least three robbers involved; Mr Chan was dragged into an alley and pushed onto the ground which fortunately resulted in only an abrasion to his right knee; $10,000 was stolen although not to be overlooked is that this would have been much greater had Mr Chan not resisted; the robbery was clearly planned with Mr Chan targeted even though the defendant may not have know about the plan until shortly before the robbery; and customers of exchange shops are particularly vulnerable, I am satisfied the proper starting point after trial is 5 yearsimprisonment. 

11.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 4 months imprisonment.   

12.On the 15 August 2013 the defendant was sentenced to 3 months imprisonment in KCCC 3145/2013 for an offence of assault occasioning actual bodily harm committed on a fellow prisoner.  That offence is entirely separate and distinct from the robbery for which, subject to totality of sentence to be served, a consecutive sentence is appropriate (see for example HKSAR v Nguyen Van Phuong CACC 341/2005 and HKSAR v Dinh Van Doung HCMA 93/2006). 

13.Taking into account all the circumstances of the case I am satisfied a wholly consecutive sentence is appropriate making a total sentence to be served by the defendant of 3 years and 7 months imprisonment which I am satisfied properly reflects his criminal culpability on the two charges.  Accordingly I order the sentence of 3 years and 4 months imprisonment to be served consecutive to the sentence of 3 months imprisonment. 

Please refer to CACC326/2013 for the relevant appeal(s) to the Court of Appeal.