HKSAR v. PALATNIKOV SASHA AND ANOTHER

DCCC 799/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 799 OF 2013

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Reasons for Sentence

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1.  The two defendants pleaded guilty to one joint charge of Robbery. Particulars are that they together on 9th January 2013 robbed the victim inside flat F, 4th floor, No.4 Yiu Wa Street, Causeway Bay of $70,000, one birth certificate, one passport, one mobile phone and one notebook computer.

Summary of Facts

2.  The 19 year old victim, Mr. Dawson (a.k.a. Zac), resides at the charge address with his friend. At about 12:30pm on 9th January, while the victim was alone in the flat, the defendants somehow gained entry into the building and then the victim’s flat. Both the defendants were wearing Halloween masks.

3.  The defendants immediately attacked Mr. Dawson with something hard which caused him to suffer from sight loss momentarily. When he could see again, Mr. Dawson found himself lying on the floor with some clothing covering his head while the defendants continued to beat him up. He also found that his mouth was covered by adhesive tape and his right ankle tied up with plastic zip tie. One of the defendants tried to tie up his left ankle but was not able to do so, possibly because Mr. Dawson was struggling against it. He also found his right hand tied but not his left hand. There was also a piece of zip tie around his neck. Mr. Dawson sensed that the defendants were trying to tie a pillow case to his neck with the zip tie but failed.

4.  Mr. Dawson kept shouting for help. As far as he could tell, the defendants stayed inside the flat for half an hour, during which time he heard sound of ransacking inside the flat.

5.  The defendants eventually left and Mr. Dawson managed to free himself and went downstairs for help. Mr. Sin who worked at the florist shop below saw the victim bleeding from his lips and he called for the Police and ambulance. While they were waiting for help to arrive, Mr. Sin used a cutter to remove the zip tie that was fastened around Mr. Dawson’s neck.

6.  Mr. Dawson was seen by doctors at Ruttonjee Hospital and x-ray and CT scans were taken with, fortunately, unremarkable results. Mr. Dawson however did suffer a bilateral scalp hematoma, swollen lips and face, bruises over his right chest wall, anterior abdominal wall and limbs and right wrist contusion with a right thumb sprain. He was treated accordingly and discharged himself against medical advice the following day.

7.  Upon return to his home, Mr. Dawson found the items particularized in the charge missing. Police officers who attended the flat earlier had found a Halloween mask, a recycle bag, 2 red plastic tapes, 2 black zip ties and a black glove. The Police also found a black zip tie, a red plastic tape, a red pillow case on the 2nd floor of the building.

8.  Mr. Dawson later managed to identify the defendants from the closed circuit television footage which recorded the defendants entering and leaving the building where Mr. Dawson resided. The defendants were also seen entering South Pacific Hotel and leaving shortly afterwards.

The arrest of D1

9.  D1 was later arrested at his place of residence in Happy Valley on 17^th January. Inside the premises, a pack of banknotes (amounting to $29,000) and various items of clothing believed to have been worn by D1 on the day of the offence (as seen in the closed circuit television footage) were seized.

10.  Following his arrest and under caution, D1 said that he was slightly involved in the robbery and that he just went there with Jesse (D2).

The arrest of D2

11.  D2 was arrested on the same day at his place of work and then taken back to his place of residence. Inside D2’s room, clothing believed to have been worn by D2 on the day of the offence (as shown in the closed circuit television footage) were seized. Under caution, D2 said that he did it because he (the victim) owed him money.

12.  Both the defendants were later interviewed under caution.

D1’s video recorded interviews

13.  In D1’s video recorded interview conducted on 18^th January, D1 said that he met D2 in December 2012 at a party. During their conversation, D2 told D1 that Mr. Dawson owed D2 $10,000. D1 then told D2 that Mr. Dawson had shown to D1 that he had $100,000 at home.

14.  A few days after that party, D1 and D2 met to discuss how to recover the money from Mr. Dawson.

15.  They then went to stalls in Mongkok and Central to purchase clothing and Halloween masks. D2 handed over some adhesive tapes, zip ties and a plastic bag to D1 for safekeeping.

16.  On the day of the offence, D2 went to D1’s home to pick up all the equipment.

17.  When they entered Mr. Dawson’s flat, D2 was wearing a mask. Mr. Dawson then hit D2 and D2 fought back. D1 assisted D2 by holding Mr. Dawson from behind and used some clothes to cover up his face. D1 did not hit Mr. Dawson but just controlled him.

18.  D2 then kept hitting and kicking Mr. Dawson who continued to put up a struggle. After a while, the struggling became less vigorous because Mr. Dawson had gotten tired. They took $70,000 cash and a notebook computer from the premises.

19.  Upon leaving the building, D2 told D1 that he needed to change clothes and they then proceeded to South Pacific Hotel. After that they left the hotel and took a taxi to D1’s home.

20.  D2 took $10,000 of the stolen money and left D1’s home for work. D1 put the remaining money inside a box in his bedroom and placed the notebook computer inside a cabinet.

21.  D1 had left his own mask at Mr. Dawson’s flat. D1 used the mask to conceal his identity from Mr. Dawson.

22.  2 days later, D2 went to D1’s home again and took half of the remaining money.

23.  In D1’s another video recorded interview conducted later on the same day, D1 confirmed that the 2 rolls of money seized from his home at the time of his arrest were money taken from Mr. Dawson’s home on 9^th  January. They had taken 6 to 7 rolls of money from there on the day. After the offence, as mentioned in the earlier interview, D2 first took $10,000 and then $30,000 a few days later.

24.  D1 confirmed the clothing seized from his home were worn by him on the day of the offence, that the adhesive tape and zip ties seized at the scene were used to tie up Mr. Dawson. The red adhesive tape and pillow case seized at the scene were brought with intent to cover Mr. Dawson’s head and D1 said he realized that he had made a big mistake.

D2’s video recorded interview

25.  According to D2 in his video recorded interview, he and D1 began to wait at about 12:30pm on 9^th January for someone to come out from the flat that Mr. Dawson was residing in so that they could enter the premises. It was D2’s plan to enter the house to retrieve the money owed to him, plus whatever other money that Mr. Dawson had.

26.  A man came out of the flat at around 1pm and he rushed into the flat. As they entered the premises, D1 went to restrain Mr. Dawson whilst he went to fetch the equipment such as zip ties and pillow case from his bag in order to restrain Mr. Dawson. Mr. Dawson was struggling while D1 was holding him. D2 kicked Mr. Dawson in his stomach and Mr. Dawson hit back. D2 kicked him again.

27.  D1 and Mr. Dawson fell down together and D2 kept kicking, slapping and punching Mr. Dawson. The struggle went on for about 20 to 30 minutes until Mr. Dawson got tired.

28.  D1 then went into the room, found money and other valuables and then put them into a bag. They then ran away at about 1:30pm. D2 saw that Mr. Dawson was bleeding from his mouth.

29.  D1 and D2 then went to D1’s home where they took the stolen properties out from the bag. They had taken a laptop computer, a brown envelope containing Mr. Dawson’s birth certificate and passport, one mobile phone and cash of $70,000. The money was wrapped in rolls and each roll contained $10,000.

30.  D2 confirmed they used 2 masks, wore cheap clothing, used black zip ties, red adhesive tape, pillow case and gloves in the commission of the offence. D1 wore a gorilla mask, which was left behind at scene together with some zip ties, the pillow case, a bag and a glove.

31.  After the incident, D2 and D1 went to a hotel to get changed before taking a taxi home.

32.  D2 had taken $25,000 to $30,000 of the stolen cash and had deposited some of the money into his bank account while spending some on drinks. D2 explained that Mr. Dawson owed him about $7,000 to $10,000 for the money D2 spent on organizing a big party for Mr. Dawson. Mr. Dawson however had told D2 that he did not have any money and so D2 never demanded payment from him. It was only when he heard from D1 that Mr. Dawson actually had $100,000 in his flat that D2 decided to take back the money from Mr. Dawson. D2 however did not plan to hurt anybody.

33.  Although D2 said he did plan the incident together with D1, D2 claimed he was more of the mastermind, more of the planner, more of the schemer. He thought D1 would be good just for him to tell the plan to and to have as muscles in case something happens.

34.  In another video recorded interview, D2 said that he made the acquaintance of Mr. Dawson and D1 through various social contacts. D2 said they brought the zip tie to the premises for typing up Mr. Dawson, the gloves to prevent leaving fingerprints and the mask to prevent him being recognized by Mr. Dawson.

35.  After they had stolen from Mr. Dawson, they returned to D1’s flat where D1 disposed of the envelope with Mr. Dawson’s birth certificate and passport. As to the $70,000 cash, D1 and himself each took $30,000. D2 deposited $25,000 into his bank account and spent the remaining $5,000.

36.  D2 had left behind a mask, a glove, some tapes, zip ties and a pillow case at the scene of the robbery.

37.  The $29,000 cash seized from D1’s residence were later identified by Mr. Dawson to be his as they were rolled up and kept in a re-sealable plastic bag.

38.  After his arrest, D2 voluntarily surrendered $25,000 of the stolen money to the Police by withdrawing the money from his bank account.

Previous convictions

39.  The defendants are both of clear record.

Mitigation

40.  Background reports were ordered to be prepared on the defendants at the request of the defendants’ legal representatives. I found that given the clear record and the circumstances of the case, reports may be able to assist in sentencing the defendants.

D1

41.  It is the probation officer’s opinion that D1 came from a supportive family and that he has been leading a normal, disciplined and healthy life. It is obvious from the report that D1, by any standard, has been quite a remarkable young man. Since he was in secondary school, he had shown his talents in the sport of rugby. He was good enough to make it into the Hong Kong Rugby Team. Even after his studies and subsequent return to working in Hong Kong, he did not give up on sports and has been playing regularly with a local football team.

42.  A mitigation bundle was handed up on behalf of D1 when the defendants returned to court after the background reports were readied. Letters from D1, his family, his former teachers and colleagues were included in the bundle. The letters confirm and elaborate on how D1 is loved by his family and well regarded by all who came to know him.

43.  In the ‘skeleton’ submitted by Mr. Haldane, it is suggested that ‘a violent robbery was not part of Sasha’s (D1) scheme’. This is stated after Mr. Haldane explained how D1’s father and family knew about D1 and D2’s plan to ask for D2’s money back from Mr. Dawson prior to the incident. It is further suggested that “D1’s father was left in no doubt that what was planned was a discussion and a verbal confrontation between them and Dawson and that there would not be violence involved.”

44.  On the 4^th page of Mr. Haldane’s un-paginated and un-paragraphed ‘skeleton’ submission, he wrote this:

“Just a few calls later and Sasha agreed to go with Jesse as his masked minder, in case Zac got violent, still no hint from Jesse to Sasha that anything else was planned.”

45.  This is a part of D1’s factual submission that I find to be inherently incredible and defies common sense. If D1 had agreed to go as a ‘masked minder’ in case Zac got violent, they must have discussed what D1 would do as the ‘masked minder’ if Zac did get violent. Was D1 then to hold Mr. Dawson back while D2 escaped from the violence, or to hold the door open while they escaped? Clearly, the only irresistible inference from D1’s agreement to be the ‘masked minder’ would be that they had agreed that they will fight back if Zac got violent. There is no mention anywhere, even in Mr. Haldane’s submissions that retreat upon violence was ever on D1’s mind.

46.  Furthermore, when Mr. Haldane submits that D1 had agreed to go as a ‘masked minder’, it means that D1 knew that he was to be wearing a mask while acting as the minder of D2. I find that it is another irresistible inference that when D1 agreed to go as a ‘masked minder’, he must have known that something untoward was going to happen. If D2 had a legitimate claim of debt against Mr. Dawson and they were to have a proper ‘discussion’ or ‘confrontation’ with Mr. Dawson, why would D1 need to be masked? Even if D1 was just to be there to protect D2 during the discussion and confrontation in case Zac gets violent, why would D1 need to be masked? Any reasonable person, in particular of D1’s obvious intelligence given that he is a ‘straight A’ student (see second page, 2^nd paragraph from bottom of Mr. Haldane’s skeleton), the only answer to the question is that D1 knew they were going to use violence against Zac should the need arise in the course of the so called discussion. D1 must have known they were going to use force to obtain the money that D2 said he was entitled to. I therefore reject what was put forward by Mr. Haldane on behalf of D1 about how D1 had ‘..no hint from Jesse… that anything else was planned.’

47.  At the next paragraph of Mr. Haldane’s submission on the same page, he wrote the following:

“Now/Next came the shopping expedition, eventually Sasha did buy his mask. He had no idea what Jesse bought; Jesse was with his girlfriend and Sasha did not see his purchases. Eventually Jesse asked Sasha if he could put his bag full of gear into Sasha’s backpack as Sasha was going home and Jesse did not want the bag with him as he was going to a meal in Lan Kwai Fong with his girlfriend.”

48.  This version of fact is, strictly speaking, not in direct contradiction with what D1 had admitted to in the Amended Summary of Facts, which was read out to him in open court after he had entered a plea of guilty.

49.  At paragraph 12 of the summary, the prosecution summarized what D1 said in one of his video recorded interviews. As mentioned earlier on when setting out the facts, D1 said he and D2 had met and discussed how to recover the money from Mr. Dawson, that they went to stalls in Mongkok and Central to purchase clothing and Halloween masks, that D2 handed over some adhesive tapes, zip ties and plastic bag to D1 for safekeeping, and that D2 went to D1’s home to pick up all the equipment before setting out to Mr. Dawson’s home. It is not stated explicitly that D1 knew what was handed to him.

50.  In any event, I find that whether D1 knew what D2 had bought and intended to bring to the robbery would not have any significant effect on the level of sentence. I have already made the finding that D1 and D2 had discussed how to recover the money from Mr. Dawson, and that by reason of D1’s agreement to be the ‘masked minder’ D1 must have known force will be engaged in the taking of the money. Even if D1 did not know what was in the bag that was brought to the robbery at first, by the time they were taken out from the bag and used on Mr. Dawson, and when D1 assisted D2 in using those adhesive tapes and zip ties to restrain Mr. Dawson in order to get his money, D1 was every bit as guilty as D2 in the use of those equipment.

51.  At the fifth page of Mr. Haldane’s skeleton, D1 seems to be suggesting that D1 knew that D2 had arranged for someone to buy something from Zac so that they could gain entry into the flat when that person left Zac’s flat. D2 even provided the cash for the person’s purchase from Zac. I find that this submission of the version of fact further indicated that even before the entry into the flat, D1 knew that D2’s entry to the flat was without Mr. Dawson’s knowledge. The fact that D1 knew D2 had gone to such trouble in order to gain entry to the flat, together with the knowledge that D1 was to be there masked is proof that D1 must have been aware that they were to use force in order to take money from Mr. Dawson while concealing their identity, should the need arise.

52.  In the following paragraph on the same page of Mr. Haldane’s skeleton, he wrote that,

“Sasha had not queried Jesse’s clothing change but as to the two were outside Zac’s flat Jesse suddenly himself put on a mask – Sasha started to say “Why are you putting on a mask – you are the one claiming the money”.

53.  I find this version of fact inherently incredible and defies common sense and I reject that D1 was startled about D2 putting on the mask, or that he was then asking why D2 was putting on the mask given he was the one claiming the money. Based on the earlier version of fact put forward by Mr. Haldane for D1, which is that “just a few calls later and Sasha agreed to go with Jesse as his masked minder”, D1 knew from the beginning that he was to be wearing a mask in the ‘discussion’ or ‘confrontation’ with Mr. Dawson. There is no mention at all in Mr. Haldane’s submission that D2 had at any time told D1 that he was not going to be wearing a mask as well. Furthermore, at paragraph 12(c) of the Amended Summary of Facts, D1 had admitted in his video recorded interview that ‘they went to stalls in Mongkok and Central to purchase clothing and Halloween masks’. At paragraph 12(d), only the adhesive tapes, zip ties and the plastic bag was given to D1 for safekeeping. There is nothing to suggest that D1 did not know that D2 had bought a mask to be used in the incident.

54.  In any event, I find that even if D1 was surprised by D2 putting on the mask at that point in time, given the subsequent conduct of D1, this fact would not have a significant effect on the level of sentence in relation to D1. If D1 was truly startled and suddenly realized that something was wrong, all that D1 had to do was to step back and leave, given that, according to what Mr. Haldane stated in his skeleton, the two of them were still outside Zac’s flat when D1 saw D2 put on the mask. D1 however did not do that. Nor did D1 say or do anything to try to dissuade D2 from continuing with their agreed ‘discussion’ or ‘confrontation’ with Mr. Dawson. Based on the Amended Summary of Facts, the two of them were both masked by the time Mr. Dawson saw them inside his flat. This is proof that whatever had gone on just before their entry, D1 had made the conscious decision to put on his own mask, knowing that D2 was also wearing a mask despite claiming to be entitled to some money from Mr. Dawson, entered the flat and continued with the act of using force in order to take the money from Mr. Dawson.

55.  Mr. Haldane suggested that it was Zac who started to attack D2. Mr. Haldane however did not try to explain what D2 had said to Zac to cause him to so attack. Mr. Haldane submitted that D1 was merely trying to “get between the two of them, to do what he thought was reasonable, and to restrain Zac who was attacking him also attempting to pull off his mask.”

56.  Mr. Haldane is trying to paint the picture of a totally innocent D1, being naive and loyal to his friend D2, who had decided to go along to protect him during D2’s discussion with Mr. Dawson, suddenly finding himself caught between a violent Mr. Dawson and his friend D2, whereupon D1 immediately went up to restrain Zac in order to protect his friend. Yet when D2 continued to beat and kick Zac while D1 was lying on the floor with Zac, D1 made no attempt to stop D2. There is no suggestion at all that D1 tried to tell D2 to stop the attack. On the contrary, even according to Mr. Haldane’s version of fact, D1 attempted to pull a hood over Zac’s head to prevent Zac from recognizing him.

57.  According to the Amended Summary of Facts, D1 continued to restrain Mr. Dawson until he was exhausted and the money could be taken from inside Mr. Dawson’s flat. Whether D1 had taken part in the taking of the money is not a significant factor in considering their culpability in the robbery. But for D1’s restraining of Mr. Dawson so that D2 could continue to assault Mr. Dawson and causing Mr. Dawson to be exhausted, the robbery could not have been carried out.

58.  Based on my findings and analysis of the facts in the case, I find that D1 was in it together with D2 in the commission of the offence of robbery against Mr. Dawson, and that for reasons given above, there is no need for a Newton inquiry into the version of facts put forward by the defence.

59.  Mr. Haldane also sought to produce a handwritten statement allegedly written and signed by D2 in order to support his client’s version of fact as put forward in his ‘skeleton’ submission. Mr. Haldane confirmed in open court that he had already incorporated the salient and relevant facts into his skeleton submission. Since I have already dealt with each of the relevant issue above based on the version of fact as put forward by Mr. Haldane on behalf of D1, I find that there is no need to hold a Newton inquiry as to whether D2 did or did not make such a statement.

The mitigation letters and D1’s various certificates

60.  As mentioned above, letters and certificates were included in the handed up mitigation bundle. 

61.  Reading all the letters and piecing together a full picture of who D1 is and has been, it is clear that the present offence is one single fall from grace of someone who has so much to offer society.

Cases

62.  Mr. Haldane cited four cases to seek to support the principle of ‘individual justice’ and to justify asking for a non-custodial sentence against D1. The main case that Mr. Haldane relied upon was the case of R v Yeung Kwun Kuen, CACC 475/2012 & 476/2012.

63.  In Yeung Kwun Kuen, the appellant pleaded guilty to a total of 6 charges (theft, obtaining and attempting to obtain properties by deception) arising out of his theft of money, a credit card, a bank card and an Octopus card from two customers patronizing a bar where he worked as a part-time waiter and his illegal use of the credit card to obtain various goods (DCCC 729/2012).

64.  In another case, the appellant pleaded guilty before the same judge to another 7 similar charges arising out of the theft of a bank card belonging to his colleague and using it to obtain goods (DCCC 976/2012).  These 7 offences in fact took place before the theft from the customers.

65.  After having various reports before him, the learned District Judge sentenced the appellant to a total of 28 months’ imprisonment for both cases. The Court of Appeal allowed the appeal and quashed the respective sentences imposed in the two cases and substituted them with a Probation Order of 2 years with special conditions.

66.  The Court of Appeal considered that the personal circumstances of the appellant warranted an unusual sentence. Some of the factors are set out by Stock VP:

“6. Whilst offences of the type in this case would normally or usually call for a term of imprisonment, the circumstances of the offender and the circumstances in which he came to commit the offences were not normal or usual. It did not take a great deal of study on our part (nor, obviously, on the part of the single judge who granted leave) to recognise that this was a case which called for the real possibility of an unusual sentencing course:

(1) the appellant was a young man of previous good character;

(2) the appellant was in gainful employment;

(3) the appellant had been suffering from a long-term mental health problem for which he had been receiving treatment—well before the offences were committed, so as to distinguish the case from those where psychiatric problems present themselves only after arrest and before sentence;

(4) the commission of the offences followed close upon the heels of a traumatic event in the appellant’s life, namely, the death of his grandmother with whom he had been particularly close;

(5) that traumatic event caused or coincided with him coming off his medication;

(6) bipolar disease or not—as to which the psychiatrists were not ad idem—the fact that the offences were committed in these highly unusual circumstances called for particular attention and a degree of compassion ;

(7) the appellant pleaded guilty;

(8) the appellant made full compensation to all those whose loss could be identified and did so before sentence; and

(9) the appellant had secured a new qualification after his arrest which provided fresh opportunity for gainful employment.”

67.  Barnes J., giving the reasons for judgment of the Court, said this:

“45. We had before us a bright young man who, unfortunately, suffered from OCD since he was 15. He had been of good character and committed these completely out of character offences. If he had indeed been suffering from Bipolar II Disorder at the time, such illness would have made him less culpable for committing these offences. Even assuming that he was not suffering from Bipolar II Disorder, we still could not ignore the fact that he committed these offences in February 2012, the same month when he ceased to take the medication for his OCD; when he ceased to consult Dr Dong and when his beloved grandmother passed away.”

68.  Apart from the fact that D1 is also of previously clear record, in gainful employment and that he had pleaded guilty, none of the special circumstances identified by the Court existed in our present case. I do not find Yeung Kwun Kuen applicable in considering the sentence to be imposed on D1.

D2

69.  As a result of the way that Mr. Haldane had conducted D1’s mitigation, much was said by Mr. Percy as to D1’s role in the robbery but given that I had already dealt with the issues arising out of Mr. Haldane’s submissions, there is no need to repeat Mr. Percy’s submissions regarding D1’s role.

70.  D2 is 23 years old. He was brought up in a middle class family with an uneventful childhood. He behaved well in school and his academic performance was satisfactory. He came back to Hong Kong without completing his university studies in South Africa upon hearing that his mother was with child. That was in mid-2009. Unfortunately, he began to live a loose life after his return. He toyed with cannabis and mingled with undesirable peers. D2 was nevertheless able to maintain gainful employment to support himself. It is the probation officer’s opinion that D2’s present violation of the law was as a result of his lack of problem solving skills and weak self-control.

71.  In addition to the $25,000 that had been withdrawn by D2 and handed over to the Police when D2 was first arrested, he is willing to further compensate Mr. Dawson $5,000 as a gesture of goodwill and to cover his medical expenses.

72.  Letters written by D2 himself, his parents, former secondary school teacher and Father Valan Arockiaswamy are presented to the court. From those letters, it can be seen that D2 has always been an upright person but that since he had mingled with the wrong people both in South Africa and in Hong Kong, he had been led astray, resulting in the present offence. Just like D1, it would appear that D2 is also a young man who still has much to offer to society if given the opportunity.

73.  Mr. Percy very helpfully referred to the case of R v Yau Kwok Tung, CACC 17 of 1987 and submitted that in a robbery where no weapons were displayed, the court should not adopt a starting point higher than 4 years’ imprisonment and suggested that, without considering any aggravating factors, a reasonable starting point in our present case is that of 3 years’ imprisonment.

Sentence

74.  Robbery is an excepted offence and the maximum sentence for Robbery under s.10(2) is that of life imprisonment. There are no sentencing tariffs for this offence.

75.  It is the defendants’ case, and I so accept, that the root of the matter was a money dispute between D2 and the victim. This is not a case of two people targeting someone randomly to rob. Both the defendants are of previously clear record and the background reports show that they are both well educated young men who have much to contribute to society. It would appear that this robbery was a serious lapse of judgment on their part. I find that the chance of them re-offending is relatively small.

Aggravating factors

76.  Having said that, I find the following aggravating factors in the defendants’ commission of the present offence.

77.  The offence was committed by two people. Mr. Dawson was beaten up and tied up in his own home. The circumstances of the commission of the robbery are similar to that of a domestic burglary, where the tying up of and use of violence on an occupier at the time of the burglary would also be considered an aggravating factor.

78.  The robbery was premeditated. The defendants met to discuss about getting money back from the victim. They went together to buy the masks. They met up on the day of the robbery, gained entry to the building without the knowledge of the victim, entered the flat of the victim wearing masks to avoid being recognized, wore gloves so that they don't leave fingerprints, attacked the victim, took the money, went to South Pacific Hotel to get changed right after the robbery (in relation to D2) and then went back to D1’s home to split the money they took.

D1’s role in the robbery

79.  According to D1’s video recorded interview, D1 admitted that he assisted D2 by holding the victim from the back and used some clothes to cover up his face. D1 was the person who controlled the victim who was putting up a struggle so that D2 could then kept hitting and kicking him. This went on until the victim was exhausted. The struggling must have been fierce and D2 could not have continued to attack Mr. Dawson without D1 controlling him.

80.  It was put forward in mitigation that D1 had no idea the matter would have gotten so out of hand. I find that be that as it may, it would account for very little in terms of mitigation. As I have mentioned above, D1 had ample opportunity to withdraw from the robbery. He could have done so when they were waiting to gain entry into Mr. Dawson’s flat, while D2 sent his person to buy something from the victim so that they could enter when the person leaves. D1 could have left when he saw D2 put on his mask. D1 could have run away when Mr. Dawson started to attack D2, if that was in fact what happened. D1 did not have to keep controlling Mr. Dawson for D2 to kick and hit while they were on the floor. D1’s conduct did not accord with the mitigation being put forward by Mr. Haldane of D1 being an innocent person being led into believing that they were there just to have a discussion with Mr. Dawson about money owed to D2.

81.  I can see clearly in the dock that D1 is much taller than D2, and it is disclosed in D1’s background report that he used to be an accomplished rugby player, both for his school and for the Hong Kong Rugby Team. If D1 had left when he found out that he had gotten into something more serious than he had intended, D2 would likely have had trouble continuing with the robbery, since the ransacking started only after the victim was exhausted from his struggle and was lying on the floor. According to the Amended Summary of Facts, a zip tie was put around Mr. Dawson’s neck and it was the salesperson Mr. Sin who had to cut it off from Mr. Dawson’s neck when he went downstairs to seek help. Again, without D1 restraining Mr. Dawson, it would not have been possible for D2 alone to put the zip tie on Mr. Dawson’s neck.

82.  I find that whatever the reason that caused D1 to agree to be the muscles or masked minder, D1 did not take a lesser role in the actual robbery. He and D2 were definitely in it together.

Starting points and final sentence

83.  Based on the character references submitted in mitigation, it is clear that D1 is an exceptional young man who has contributed much to society and, regardless of the outcome of the present case, will continue to so contribute. His talent in sports as well as marketing are remarkable and it is heartbreaking even for this court to see how he was going to throw everything away by associating with dubious peers and dabbling in dangerous drugs.

84.  Likewise for D2, he may not be as talented a sportsman as D1 but with his family’s support, it is still possible for him to turn a new leaf and start to live up to his potential.

85.  Bearing in mind all the circumstances of the case, in particular the aggravating factors that the defendants had committed the robbery inside the victim’s own home, assaulted him and tied him up, but also mindful of the fact that it was not a typical robbery, I find that a proper starting point should be that of 3 years and 6 months’ imprisonment for both defendants.

86.  I have considered whether I should adopt a higher starting point for D2 given that he had admitted that he was the mastermind, planner and schemer. I have decided that although the matter arose out of D2’s dispute with Mr. Dawson, what D1 had done in the build up to the robbery, and what he did during the robbery made him every bit as culpable as D2, and so there should not be any difference in the starting point.

87.  Both defendants pleaded guilty and are granted the full one third discount, resulting in a sentence of 28 months’ imprisonment.

Further reduction

D1

88.  As I mentioned above, I find D1 to be an extraordinary young man who has much to contribute yet. Based on D1’s previous contribution to society, this being his single fall from grace and the fact that his employer are willing to take him back upon him serving his sentence, I will further reduce his sentence by 4 months, resulting in the final sentence of 24 months’ imprisonment.

D2

89.  At the suggestion of D2, I will order that Mr. Dawson be compensated by D2 in the sum of $5,000. This money to be taken from D2’s bail. For this willingness to compensate, as well as for D2 choosing not to give up after being arrested for the present offence and continued to be in gainful employment as a part-time waiter, and the fact that he also suffered a single fall from grace, I will further reduce his sentence by 2 months, resulting in the final sentence of 26 months’ imprisonment.