Case Document

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DCCC 132/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 132 OF 2014

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	HKSAR
	v
	Jengo Pickett Raphael

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Before:

HH Judge Woodcock

Date:

8 May 2014 at 10.44 am

Present:

Ms Mahinder Panesar, Counsel on fiat, for HKSAR
Mr Hanif Mohamed Mughal, instructed by Massie & Clement, assigned by the Director of Legal Aid, for the defendant

Offence:

Robbery (搶劫罪)

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

2.This was a robbery of a taxi driver that took place at about 5 am on 14 September 2013. PW1, the taxi driver, picked up the defendant and another in Tsim Sha Tsui. Initially, the defendant tried to board the taxi from the front passenger seat, but the driver refused this, and he sat at the back with the other man.

3.The defendant asked the taxi driver to drive to Sham Shui Po. Before they arrived, the taxi driver became suspicious and unbuckled his seat belt and opened his window. The facts say he noticed the defendant had some bad odour. The defence say that was the smell of alcohol on the defendant.

4.When the taxi driver stopped his vehicle, the other male, the wanted person, stepped out. But the defendant remained in the back and pointed what appeared to be a knife at the neck of the driver. Using his right arm, he placed it around the driver’s neck and tried to grab the driver’s bag next to him. The defence say that what is described as like a knife was in fact a screwdriver.

5.The defendant whilst trying to grab the driver’s bag asked for his money and his phone. The taxi driver resisted the defendant. But what happened was the wanted person put his arm through the opened window and took the taxi driver’s iPhone. Both the defendant and the wanted person then ran away. They in fact ran to a friend of the wanted person who lived nearby in Tung Chau Street. This friend was in fact expecting them. They changed clothes, left some clothes there and left the premises.

6.This friend was later arrested because the police suspected he was involved in the robbery.

7.As part of the investigation, the defendant’s DNA was found in a baseball cap left in PW2’s apartment. The taxi driver later identified the defendant at an identification parade as the man who pointed what appeared to be a knife at him during the course of the robbery.

8.When the defendant was subsequently arrested, he denied the offence but did admit it to PW2 when they met at the Lai Chi Kok Remand Centre.

9.The defendant’s best mitigation is his plea of guilty now.

10.I have been told the defendant is 45 years old, originally from Tanzania, but he came to Hong Kong in 2008 seeking asylum. His application has not been processed yet. Whilst waiting he has in fact already served two terms of imprisonment; two burglary offences in 2009 and 2012. When not in prison, he is supported by the international social services. I know they give assistance for accommodation, food and personal necessities.

11.I have been told the defendant is a heavy drinker. He told the psychiatrist he had seen whilst in remand that he drank a bottle of whisky and several cans of beer every two days. I am not sure how he can afford this, but it seems to have led to some psychiatric problems.

12.I have been told that in fact when he committed this offence he was drunk, but he knew what he was doing. I have also been told that he was acting upon the suggestion of the wanted person and it was not his initiative to commit this offence.

13.As I have said, since he has been remanded in custody, he has been assessed by a psychiatrist and at the moment is receiving treatment at Siu Lam Psychiatric Centre. I have a report dated 24 April 2014. When he was first seen in October last year, the psychiatrist was of the view he was suffering from a mental and behavioural disorder due to alcohol; an induced psychotic disorder on the background of dependence syndrome.

14.He was transferred back to Lai Chi Kok in December. However, in March he returned to Siu Lam because he was suffering from persecutory delusions. He thought he was being persecuted and that the radio and telephone were broadcasting his thoughts to be other people. Ultimately he has been diagnosed to be suffering from schizophrenia; split personality syndrome. After the second visit to Siu Lam, he has now agreed to take medication.

15.There is, despite this report, no evidence that when he committed this offence he was suffering from any psychiatric illness. Or, more precisely, he committed this offence because of a psychiatric illness.

16.As I have said, the best mitigation today is his plea of guilty. This is a taxi robbery with several relevant factors I must consider. It was committed in the early hours of the morning when taxi drivers are most vulnerable. This was a robbery where the defendant had an accomplice. In addition, a weapon, be it a knife or something sharp like a screwdriver, was actually displayed. And, lastly, there was some physical contact when the defendant put his arm around the driver’s neck. But obviously no real force was used or injury suffered.

17.The defence have said that it was the wanted person who suggested committing this offence and the wanted person who supplied the screwdriver. However, in my view, no distinction should be drawn between the two men. I do not differentiate their roles; both have jointly committed this robbery. They are equal participants.

18.I have been referred to several authorities including Mo Kwong Sang v R, CACC359/1981. This case is often quoted and the Court of Appeal held that a 5-year starting point would be appropriate in an ordinary case of armed robbery where the defendant carried a knife or another dangerous weapon which was displayed to his victim.

19.I have also been referred to the authority R v Tran Van Anh [1993] 2 HKCLR 122 where the facts in that case are similar to the facts in this case. The appellant in that case pointed a sharp object at the driver’s neck and grabbed his hair before stealing his wallet. The Court of Appeal in that case held that based on earlier or previous taxi robbery sentences, a sentence of 5 or 6 years’ imprisonment would be appropriate. That would apply where minimal or no violence was used and a weapon was merely displayed. That authority does go on to say however that sentences of 7 years’ imprisonment after trial would be justified for similar offences.

20.I have also referred myself to another authority HKSAR v Dhillon Kenneth Simon CACC90/2002, where the Court of Appeal refers to what I have just referred to in R v Tran Van Anh. Specifically, it says it is significant in that Tran Van Anh holds that a sentence of 7 years’ imprisonment after trial would be justified. What the Court of Appeal is doing is highlighting the seriousness of robberies where taxi drivers are concerned.

21.Defendant, please stand up. I have considered your plea, the facts of this case, the aggravating or relevant factors I have highlighted, your mitigation put forward, including the explanation as to how you came to commit this offence. I have paid particular attention to the authorities I have referred to as well as those I have been referred to and considered that in this case a weapon has been displayed, there was an accomplice, it was in the very early hours of the morning and some physical contact was used, but it cannot be defined as serious resulting in any injury.

22.Accordingly, I take a starting point of 6 years’ imprisonment. You are entitled to a discount of one-third for your plea today. That reduces the sentence to a term of imprisonment of 4 years. Do you understand that sentence?

DEFENDANT: Yes.