HKSAR v. MEHMOOD ARSHAD AND ANOTHER

HCCC 131/2021 & 149/2023
(Consolidated)

[2024] HKCFI 378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 131 OF 2021 and 149 OF 2023

(CONSOLIDATED)

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REASONS FOR SENTENCE

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1.  D1 and D2 were convicted after trial by jury of one count of robbery. D2 was also convicted of one count of wounding with intent to cause grievous bodily harm.

2.  D1 passed away on the day he was supposed to be sentenced. I proceeded to sentence D2 but adjourned D1’s case pending the issuance of his death certificate.

SUMMARY OF FACTS

3.  On 21^st September 2018, two employees of a diamond trading company, Mr Koo and Mr Ketan, each carried a backpack of money and left their office to drop off the money at a money exchange company that was within walking distance.

4.  Just when they finished walking across the pedestrian crossing at the junction of Hok Yuen Street East and Hung Hom Street, 3 men ran up from behind and attacked them. Their backpacks were snatched from them and they were left injured while the robbers fled.

5.  Mr Koo sustained three open wounds to his legs and left thigh.  He was hospitalized until 7 October 2018 after surgery and was granted 34 days’ sick leave.  His wounds healed without complication and the range of movement of his knee was not restricted.  By 3 April 2019, he had recovered fully from his injuries. The psychologist report states that the robbery did not have any significant negative psychological impact on his emotional functioning.  

6.  Mr Ketan sustained a 4cm laceration to the back of his left thigh. No hospitalization was required.

7.  There was a total of US$740,000 and HK$363,060 in cash, and a total of US$54,613 in cheques payable to the diamond trading company inside the backpacks. They were never recovered.

8.  Indian male Sahil Kumar, one of the 3 robbers, was later arrested and indicted for this robbery. He pleaded guilty and was sentenced by Barnes J to 8 years and 4 months’ imprisonment.

9.  Nepalese male Limbu Binod, one of the attackers with a knife, also pleaded guilty and was sentenced for his role in the robbery on the same day by Barnes J to 9 years and 4 months’ imprisonment.

10.  Sahil chose to give evidence for the prosecution in the trial of D1 and D2. By their guilty verdicts, the jury must have found him to be an honest and reliable witness as to the part D1 and D2 played in the robbery.

11.  It is Sahil’s evidence that he was recruited by D1 before the robbery with a promised reward of HK$100,000. D1 told him that his role was to snatch, and that there will be attackers who will be using knives. Since Sahil was living at D1’s place at that time, they had discussions about the robbery. Sahil and D1 had used adhesive tapes to bind some cloth to the handles of the knives that were later used in the robbery.

12.  On the morning of the robbery, there was a meeting at D1’s flat where Sahil and the two Nepalese attackers, Limbu and D2, were present.  D1 briefed all of them about the robbery in Urdu, telling them what is going to happen.

13.  After the meeting, Sahil, D2 and Limbu left D1’s flat and went to take a taxi to meet up with ‘Wifi’, the getaway car driver. The getaway car was stolen slightly more than one month before the robbery.

14.  Wifi did pick them up and then drove to an unknown carpark where they waited. Wifi eventually drove them to the Hung Hom area in the vicinity of the office building where the targets will emerge. Sahil got off first and acted as a scout. Once he saw the targets came out from the office building, he telephoned Wifi and told him to send the 2 Nepalese.

15.  Limbu and D2 got out of the car outside the building of the office of the diamond trading company. While the targets, Mr Koo and Mr Ketan, walked slowly along the road, Sahil tailed them from a short distance, with Limbu and D2 following from still further behind Sahil.

16.  At the junction of Hok Yuen Street East and Hung Hom Road, they struck. The attackers slashed their targets on the back of their legs near the knee and thigh area without warning and from behind to immobilise them. The backpacks were snatched and the victims were left to bleed.

17.  Sahil and D2 got into the getaway car, which had positioned itself just a few cars’ distance away from the traffic lights controlling the junction. Limbu did not get into the car and had run away.

18.  Wifi drove the getaway car to Olympic City where he, Sahil and D2 got out and abandoned the car there, unlocked. Sahil and D2 had changed into different clothing to avoid identification. The 3 of them eventually got onto the MTR and rode to Mei Foo station.

19.  Sahil’s evidence is that while they were on the MTR, Wifi told he and D2 to leave the backpack they were each carrying on the seat in one of the compartments, and then they moved to another compartment. Sahil saw a few Indian or Pakistani male went to pick up the backpacks and left. He never saw those backpacks again.

20.  After leaving Mei Foo MTR station, Sahil went back to D1’s flat and took a nap. He got a call from D1 telling him to leave, warning him that there may be Police coming to the flat. Sahil did leave and went to stay at a guesthouse.

21.  CCTV cameras captured the movements of Sahil, Limbu and D2 at various stages of the robbery, including Limbu and D2 leaving a building together on the morning of the robbery; the scouting by Sahil and subsequent movement of Limbu and D2 up to and including the robbery; and Sahil and D2 getting into the getaway car. There are also footages tracing Wifi, Sahil and D2 from where the car was abandoned to their final destination at the Mei Foo station ticketing lobby.

PREVIOUS CONVICTIONS

22.  At the time of his commission of the offences, D2 was of clear record.

MITIGATION

23.  D2 was born in February 2000 and was 18 at the time of the offences. He is now almost 24. Based on the evidence he gave at trial about his background, he was born in Nepal and had come to Hong Kong permanently in 2017 as a dependent.  He is holder of a Hong Kong permanent identity card.

24.  Mr Hotten said in mitigation that the court should take into consideration the 13-year starting point adopted by Barnes J when she sentenced Limbu Binod and Sahil Kumar, and suggested that D2’s starting point should not be higher than that, since that starting point had already taken into account that knives were used and people were injured in the robbery. He also pointed to the fact that there is no evidence to suggest that D2 was the mastermind of the robbery, and that at the time of his arrest, D2 was not living a lavish lifestyle, suggesting he had not benefitted from the robbery, despite the fact that the money had not been recovered.

25.  Mr Hotten reminded the court that D2 was a young man at the time of the offences and is still relatively young. He has a young son and common law wife to look after as well.

26.  As for the wounding charge, Mr Hotten submits that the sentence should be made concurrent to that of the robbery since, as said above, the 13-year starting point had already taken into consideration people being wounded, bearing in mind the guideline sentence of 5 years’ imprisonment where a knife was used in a robbery.

SENTENCE

Court 1: robbery

27.  The maximum sentence on conviction upon indictment for the offence of robbery is that of life imprisonment.

28.  The Court of Appeal laid down guidelines in the case of Mo Kwong Sang v R [1981] HKLR 610 on sentencing cases involving the offence of armed robbery.

29.  The appropriate sentence in an ordinary case of armed robbery where a knife was used should normally be in the range of five years’ imprisonment. If the robbery involved an invasion of private premises then six years imprisonment would be appropriate. If any physical violence is used on any of the victims such as tying them up then seven years imprisonment should be considered. The Court of Appeal emphasized that these sentences should be increased should there be other aggravating factors, such as the robbery being committed by more than one person.

30.  The aggravating factors in this case are that the robbery involved at least 5 people in its planning and execution; it was targeted at a business that the planner knew had a big cash flow; the robbery was well organized; the execution of the robbery was ruthless involving two 10 inch long knives, which were taped to avoid slipping and leaving of fingerprints; the robbery took place in broad daylight in the middle of the road and in full public view, which must have been traumatic for those around who witnessed it; the use of a getaway car; the change of clothing of D2 in the getaway car after the robbery to avoid identification and being tracked; the manner that two backpacks with the stolen money were disposed of suggested yet more people being involved in the robbery or in the handling of the stolen money; the large amount of money stolen which was never recovered; and the victims suffered serious injuries.

31.  D1 was responsible for asking Sahil Kumar to join in the robbery. D1 must have known ‘Wifi’ the getaway driver since Sahil had met them when drinking near D1’s home. D1’s fingerprints were found from the sticky side of the adhesive tapes used to bind the cloth around the handle of the knives, as well as on the handle of the red plastic bag found inside the abandoned getaway car with one of the knives inside the bag. Although D1 did not take part in the execution of the robbery, he had a hand in its planning and prepared the knives for use in the robbery.

32.  D2 was one of the two designated attackers. D2’s fingerprint was found on the same red plastic bag, as well as on the outside of the getaway car. His DNA materials were found on a mask lying on the ground next to the abandoned car; from a cap, the red plastic bag, a pink plastic bag, the handle of the two knives, with one having the blood of one of the victims; and on three pieces of upper garments inside a bag.  These were all found from inside the abandoned getaway car. DNA material from the blood of Mr Koo, the victim with the more serious injuries, was found on the knife that had D2’s DNA material.  D2 had followed and executed the plan and inflicted serious injuries on Mr Koo.  He is as culpable as D1.

33.  For this joint enterprise, bearing in mind the 13-year starting point adopted by Barnes J when she sentenced Limbu Binod and Sahil Kumar, I will adopt the same starting point in relation to both D1 and D2 after taking into consideration the seriousness of the offence and all the aggravating features present.

34.  The sentence on count 1 for D2 is 13 years’ imprisonment after trial.

Count 2: wounding with intent to do grievous bodily harm

35.  The maximum sentence on conviction upon indictment for this offence is that of life imprisonment.

36.  The customary sentence for wounding with intent is that of 3 to 12 years’ imprisonment.

37.  Given the circumstances of the wounding, the fact that the victim did not suffer permanent disabilities nor any long term psychological harm, but at the same time taking into consideration the cold-blooded manner it was conducted, attacking Mr. Koo from behind without warning and so depriving him of any chance of self-defence, I will adopt a starting point of 8 years’ imprisonment.

TOTALITY

38.  I agree with Mr Hotten that the 13-year sentence for the robbery has already taken into consideration all the aggravating features that I had listed out above, including the fact that knives had been used to cause serious injuries to the victims. D1 and Limbu and Sahil and now D2 are all being punished for taking part in the joint enterprise of that robbery and that is why although Sahil was not the person who used the knives, Barnes J still adopted a starting point of 13 years’ imprisonment before granting him the relevant discounts.

39.  I will, therefore, order that the sentence in count 2 be served wholly concurrently with the sentence in count 1.

40.  The final sentence for the two counts in relation to D2 is, therefore, 13 years’ imprisonment.