HKSAR v. Mmassy Dismas Cosmas also known as Mmasi Disimassy

DCCC 867/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 867 OF 2014

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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 on 14 September 2013 at about 5 am.  The taxi driver, PW1, picked up the defendant and another male, Mr Jengo Pickett Raphael, in Tsim Sha Tsui.  Mr Jengo initially tried to get into the front seat next to the driver, whilst the defendant got into the back seat.  However, the driver insisted that Jengo sit in the back with the defendant.

3.During the journey it was Jengo that spoke to the driver, not the defendant.  He told him to go here and there until he finally told him to stop.  By then the driver was suspicious of both his passengers.  Before he was asked to stop he had already unbuckled his seatbelt and opened his window.  When the taxi stopped, the defendant got out and was by the driver’s window.  Jengo remained in the vehicle and suddenly pointed what appeared to be a knife at the driver’s neck.  Using his right arm, he grabbed the driver’s neck.  He tried to take the driver’s bag, which was beside the driver.  The taxi driver struggled.  Whilst this was going on, the defendant reached through the driver’s open window and took the driver’s iPhone, which was attached to the windscreen on a phone bracket.  Photo 7 of a photograph album of the taxi shows the phone bracket.  Then both the defendant and Jengo ran away.

4.The defendant explained in mitigation that he got out of the vehicle and then noticed Jengo trying to rob the taxi driver. Jengo shouted at him to take the driver’s phone, and at that moment he panicked and did as he was told.  He regrets taking part in this robbery.

5.The facts are that both men ran to a nearby building where a friend of the defendant lived.  The defendant had his home keys, and they let themselves in.  They changed their clothes before leaving again.  Later the police located this address, and in this home found the defendant’s T-shirt that he had worn during the robbery in the premises.  DNA linked this T‑shirt to the defendant.

6.The defendant was arrested on 2 May 2014, and remained silent under caution.  An identification parade was arranged, and the taxi driver identified the defendant as the man who took his phone.

7.The defendant’s best mitigation is his plea of guilty.  The other robber, Mr Jengo, was arrested earlier than the defendant.  He was sentenced on 7 May 2014 to 4 years’ imprisonment after a plea to a charge of robbery.  The starting point was 6 years’ imprisonment.

8.The defendant is not a man of clear record.  He has one previous conviction where he was sentenced to 26 months’ imprisonment for two burglary charges on 25 November 2014.  The offence date for the first burglary was 18 March 2014.  The burglaries were committed after this robbery but before his arrest for robbery.  He is presently serving this term of imprisonment for burglary.

9.In mitigation I have heard the defendant is 25 years old, single, and comes from Tanzania.  Although he is single, he has a 3-year-old son at home in the care of his parents.  He was present in Hong Kong on a visitor’s visa because he was trying to maintain a business between Hong Kong and China.  I have had sight of a letter of mitigation from the defendant explaining his personal circumstances and expressing his remorse.  All that can be said on his behalf has been said in mitigation.

10.I have been asked to distinguish the defendant’s role from that of Mr Jengo.  It has been emphasised the defendant did not use violence against the driver and he was outside of the taxi when he took the phone, not inside.  I have been asked to consider a difference in starting point because he agreed to the robbery after it had started.  However, that explanation comes from the Bar table.  I have been asked to consider the defendant is not as culpable as the other defendant, Mr Jengo.

11.However, in my view, this is a joint enterprise.  But for the fact Jengo was pointing a weapon at the driver and holding him around the neck, the defendant would not have had the opportunity to take the driver’s telephone.  This robbery was committed together.  I do not view the defendant’s role as less culpable than that of Mr Jengo’s.

12.Being a taxi robbery, there are several relevant factors I must consider.  It has been said time and time again that taxi drivers are vulnerable victims, especially when the robbery takes place in the early hours of the morning like this robbery, at about 5 am.  Here there were two culprits, not one, and a weapon was displayed.  Luckily this weapon was not used and the physical force was limited to Mr Jengo grabbing the driver’s neck.  No injury was suffered by this taxi driver.

13.I have referred myself to the authority of Mo Kwong Sang v R CACC 359/1981.  This is an often-quoted authority where the Court of Appeal is of the view that a 5-year starting point is appropriate in an ordinary case of armed robbery where a defendant carries a knife or a dangerous weapon and displays it to his victim.  I have also referred myself to the authority of R v Tran Van Ang [1993] 2 HKCLR 122.  The facts of that authority are very similar to this case, and the victim was a taxi driver.  The Court of Appeal said a 5 or 6-year starting point is appropriate, and that is appropriate where minimal or no violence was used and a weapon was displayed.  That court also said a sentence of 7 years after trial would be justified in a similar scenario.  That authority was also referred to in HKSAR v Dylan Kenneth Simon CACC 90/2002, where that Court of Appeal also reiterated that a sentence of 7 years after trial of a taxi driver robbery could be justified.  This is indicative of the Court of Appeal highlighting the seriousness of taxi robberies.

14.What does differentiate the defendant here today from Mr Jengo is the fact at the time of the offence this defendant had a clear record, and Mr Jengo had several convictions.  The second difference is that this defendant is willing to compensate the taxi driver’s loss of $4,000 for his iPhone.  Not only is he willing, he has the money available.  That will justify a reduction in the starting point.

15.Defendant, please stand up.  After considering the mitigation put forward, the background of the defendant, the relevant factors for sentencing a taxi robbery, balanced against the good mitigating factors that I have just referred to, I will take a starting point of 5 years and 3 months.  You are entitled to a discount of one-third for your plea.  That is a discount of 21 months.

16.Therefore, for this charge you are sentenced to 3 years and 6 months’ imprisonment.

17.I will order a compensation order of US$516 payable to PW1, the taxi driver, by 29 January through the Correctional Services Department.

18.Do you understand that sentence?  You are presently serving a 26-month term of imprisonment, as I have said, imposed in November last year.  The case number is DC 586/2014.  I have to consider the totality principle, and I will order that part of this sentence will run concurrently with that sentence to reflect the totality principle.  I will order that 1 year and 4 months of this 3 years and 6 months sentence imposed today will be served concurrently to the sentences imposed in DC 586/2014.  The balance will be served consecutively.  Do you understand?