HKSAR v. LAMA SHEREB

 DCCC682/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 682 OF 2009

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant was convicted after trial of a charge of robbery.

The Facts of the Case

2.  At about 11.50 am on 13 May 2009, PW1 entered a subway  , while he was on his way home in Jordan. PW1 noticed two Nepalese men were on his right-hand side.  He received a punch on his right cheek, and his eye glasses fell down.  One of them then pinched his neck from behind and pressed him down.  His right face was on the ground and his right arm and hand were also held down.  His left hand held onto a mobile phone but was snatched by a man wearing a cap.  After that, two men fled in two different directions.  PW1 chased after the defendant who was wearing a cap at the material time.  Subsequently, the defendant was arrested. 

3.  PW1 also said that he was kicked two to three times on his head.  His right corner forehead was swollen, his right cheek was swollen too, and he has abrasion on his left elbow. 

Criminal Reocrd

4.  In respect of criminal record, the defendant has one theft in 2005 and it was a spent record.  He was fined $500. 

Mitigation

5.  The defendant is now 23 years of age.  At the time of arrest, he was a waiter and earned $7,300 per month.  The defence submitted to me that there is no guideline for unarmed robbery, and in the case of Wong Chi Wai Ricky CACC29/2008, the victim was attacked by two applicants by punching and kicking on his head, chest, face and other parts of his body.  The victim suffered redness on the chest, haematoma on the lips, loosening of teeth, and an abrasion on the forearm.  The injuries on his lips and his left hand were so painful that he was unable to consume solid food or use his left hand for about half a month.  The applicants were sentenced to 21 months’ imprisonment after plea for the charge of attempted robbery.

6.  It was further submitted to me that the defendant is a young man of 23 years old, and the commission of the offence was not premeditated. 

Sentence

7.  The fact that the defendant is 23 years old is not a mitigating factor for such a serious offence.  The defendant is old enough to understand the consequence of his acts.  The Court of Appeal states in Lam Ka Hung CACC294/2003 that a sentence of 4 years’ imprisonment for a robbery where no weapons are displayed was described by Robert CJ in Yau Kwok Tung [1987] HKLR 782 at page 783 as being at the top end of the tariff.

8.  In the present case, no weapon was used in the course of robbery.  It involved two persons, including the defendant, to subdue PW1 to snatch his phone away.  It was an unpleasant experience for PW1 as he received a punch on his cheek, he was pressed onto the ground and received two to three kicks on his head, as a result of which he sustained swollen forehead, cheek injury, abrasion on his forearm.  It was fortunate that PW1 did not suffer serious injuries.  He lost his one-month-old iPhone which was worth $5,200.

9.  Taking into account of all the mitigating factors and all the circumstances of the case, I consider that 3 and a half  years is the appropriate sentence to reflect the criminality of the offence.