HKSAR v. NAYAB AMIN AND OTHERS

HCCC 412/2019

[2020] HKCFI 3109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 412 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: There are three defendants, Nayab Amin, D1, Adil Akbar, D2 and Akram Muhammad, D3, they face one count of Robbery, contrary to section 10(1) and (2) of Theft Ordinance, Cap 210. That is the 1st Count, and an alternative count of Handling Stolen Goods, contrary to section 24 of the Theft Ordinance, that is the 2nd Count.

All three defendants pleaded not guilty to the 1st Count of Robbery but pleaded guilty to the 2nd Count of Handling Stolen Goods. I found all three defendants guilty of the 2nd Count of Handling Stolen Goods after they have admitted to the facts.

I will now refer to the facts that have been admitted by all three defendants. First of all, the robbery. Mr Nasit Arvind Kanubhai, PW1, was a businessman operating a diamond wholesale company, Fancy Creations, in Hong Kong. On 18 March 2016, PW1 took with him 1,100.59 carats of diamond valued at around US$200,000, to meet his potential client in Hung Hom. PW1 packed the diamonds in eight packets and put them inside a red zip bag. He carried the diamonds together with six GIA reports and 23 invoices of this company in a shoulder bag.

When PW1 was walking along Tai Wan Road towards Kaiser Estate in Hung Hom, his head was suddenly hit by a hard object from behind. He felt dizzy and fell backwards. He was further assaulted by hard objects on his right shoulder on the back and right calf and his face. When he was being assaulted, someone snatched his shoulder bag. The robbers then made good their escape.

PW1 immediately reported the case to the police. He noticed that all the robbers had dark complexion. CCTV of the buildings nearby, near the scene, captured the robbery. It was seen that PW1 was robbed by seven South Asian males. It was also captured that one of the robbers stumbled as they ran up the stairs and fled.

PW1 was taken to the Queen Elizabeth Hospital the next day, on the 19th. On examination he was found to be suffering from head injuries and there was a 2-centimetre erythema over his right back of the head. There were photographs of his injuries. They showed bruises on the right side of his face, head, right shoulder, back, right thigh and right shin. These were injuries caused by the robbers during the robbery.

On 28 April 2016, that is about 5 weeks after the robbery, Chief Inspector Ho Chi-chung, we will call him PW2, he posed as a potential diamond buyer, and attended a meeting arranged by the informer, Mr X, at the CEO Karaoke Bar in the Megabox building in Kowloon Bay.

During this meeting, PW2 met D1, D2 and D3 and also there was a fourth South Asian male. D3 took out a red zip bag from his waist bag and showed PW2 seven packets of diamonds, six GIA reports and 23 invoices of the company. D1 told PW2 that they were stolen properties of a robbery in Hung Hom the month before. D3 said the victim was hit with a metal pipe.

D1 and D2 stated their friends had risked their lives for the diamonds and D3 added that one of them has stumbled as they ran up the stairs and fled. D3 asked for HK$600,000 for the seven packets of diamonds. The price eventually agreed was HK$400,000. PW2 told D1 to D3 a further meeting would be arranged for the diamonds and the money to be exchanged.

Then on 11 May 2016, PW2, together with Sergeant 52011, PW3, met with the defendants in a room at the New World Hotel in Tsim Sha Tsui, as arranged. D1 and D2 entered the room together and D2 checked the room by opening drawers and doors to ensure that there was no surveillance or ambush. D2 then told PW3 that D1 would go and get the diamonds for the transaction. D1 then went to meet up with a Pakistani male called Imran Muhammed at the entrance of the hotel and D1 was given a red rucksack by this man, Imran.

So after meeting up with D1, Imran then joined D3, who had been standing by near the hotel. D1 then returned to the hotel room and he took out the stolen property, the seven diamonds from the red rucksack given to him by D3. At that juncture, PW2 informed the police officers would be lying ambush nearby to arrest D1 and D2. Meanwhile, D3 and Imran were also arrested outside the ground floor of the hotel.

Under caution, none of the defendants made any admission relating to the offence. Later on the same day, PW1 positively identified the property seized, that is the seven packets of diamonds weighing about 585.86 carats, the six GIA reports and also the 23 invoices of his company.

According to Immigration record, D1, D2 and D3 were released on their own recognisance on 28 February 2008, 23 February 2008 and 20 February 2009 respectively.

It is necessary to set out the procedural history of this case. D1 to D3 faced one charge of robbery, while another defendant, D4, that is Imran, faced one charge of handling stolen goods and their joint trial took place on 1 August 2017 to 8 September 2017.

After PW1, that is the victim, had given evidence, D1 to D3 offered to plead guilty to handling in lieu of the robbery, but was rejected by the prosecution. All defendants were found guilty of their respective charges, in other words, D1 to D3 guilty of robbery, D4 guilty of handling stolen goods.

The Court of Appeal allowed the appeal of D1 to D3 on the basis that it was a misdirection on the part of the trial judge to invite the jury to have regard to recent possession, in support of a conviction of robbery only, as distinct from handling stolen goods. That is if the jury was not prepared to accept the applicant’s admission to the undercover police, PW2, at the Megabox Karaoke Bar meeting.

There was a long discussion by the Court of Appeal on the issue of public interest immunity (PII) as that was one of the grounds advanced by D1 to D3 on appeal. During the original trial, D1 to D3 applied to have the informer, Mr X, give evidence as to what had taken place during the Megabox meeting, since PW2’s evidence that D1 to D3 each had made certain admissions, and these were challenged by the three defendants.

As D1 to D3 admitted before me that they did make reference to the robbery to PW2 at the Megabox meeting, when they pleaded guilty to the alternative count of handling, the issue of PII is no longer relevant.

Now I will deal with the authorities submitted by the prosecution. The prosecution submitted four cases relevant to the sentencing for the offence of handling stolen goods. In the English case of R v Bernard Webbe & Others, the English Court of Appeal considered the guidelines for sentencing in cases of handling stolen goods proposed by the Sentencing Advisory Panel and agreed with the view expressed by the panel in relation to nine aggravating factors.

Our Court of Appeal adopted the same aggravating factors in the case of HKSAR v Cheng Chi Wai. Now those nine aggravating factors are:

(1) The closeness of the handler to the primary offence.

Our Court of Appeal added that closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand or soon after provided a safe haven or route of disposal.

(2), particular seriousness in the primary offence.

(3), high value of goods to the loser, including

sentimental value.

(4), the fact that the goods were the proceeds of a

domestic burglary.

(5), sophistication in relation to the handling.

(6), a high level of profit made or expected by the

handler.

(7), the provision by the handler of a regular outlet

for the stolen goods.

(8), threats of violence or abuse of power by the

handler over others. For example, an adult commissioning criminal activity by children or a drug dealer pressuring addicts to steal in order to pay for their habit.

(9), commission of an offence while on bail. The

prosecution submitted that factors 1, 2, 3, 5, 6 are applicable in this case.

The case of Cheng Chi Wai involved an operator of a motor vehicle workshop handling a total of six stolen goods between 2001 and 2009. The Court of Appeal was of the view that the evidence showed it was a well organised and well set up operation for the receiving, repackaging, breaking up and disposal of stolen goods by a handler, whose illegal services are well-known to those who steal motor vehicles.

So Cheng was therefore a professional handler providing a professional service to professional criminals. His crime placed him in the range of serious handling offences. The Court of Appeal allowed the application of the Secretary for Justice to review the total sentence of 3½ years and substituted a total sentence of 5½ years.

The prosecution also relied on two other cases. The case of HKSAR v Sze Suen Yin & Another and also the case of Hui Kam Ming.

In Sze Suen Yin, there were two appellants who were convicted of conspiracy to handle stolen goods. The stolen goods in question were 6,400 stolen computer hard disks with the value of US$77 per piece, so HK$3.8 million. The trial District Court judge adopted a starting point of 5 years and gave each appellant a 6 month’s discount for previous good character. The Court of Appeal upheld the 5-year starting point and commented that the two appellants were fortunate to have had their sentences reduced to 4½ years.

The case of Hui Kam Ming involved a robbery at an airfreight company. An employee of the company was beaten up and blind folded by a number of men and 418 sets of mobile phones and 31 uniforms, valued in excess of HK$2 million were removed from the warehouse of the company.

The appellant was the driver of a vehicle parked outside onto which the goods were loaded. The appellant knew the goods were stolen, although he did not know until he drove away that his companions had assaulted and tied up a member of the staff of the company. The appellant was later arrested and he pleaded guilty to the offence.

The trial judge adopted a starting point of 5 years and gave the appellant a discount of 1 year for mitigating circumstances. The Court of Appeal said it was satisfied that a starting point between 5 and 7 years would not be inappropriate in similar cases in the future.

Finally, the prosecution referred to the case of HKSAR v Ali Saif. That is the case involving an appellant found guilty of trafficking in a dangerous drug. The point relied on by the prosecution is the enhancement of sentence on a defendant who was a Form 8 recognizance holder. In that case the trial judge referred to the case of HKSAR v Shah Syed Arif and enhanced the sentence by 1 year.

On appeal, Mr Justice Macrae, VP, gave judgment of the court and said at paragraph 17 as follows:

“When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancement of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases considering that the enhancement of sentence was best left to the discretion of sentencing judges.

However, we should say that we would not expect enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people in Hong Kong and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants.

Furthermore Form 8 recognizance holders whose non‑refoulement application may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes whilst their applications are being processed.”

Now I will deal with the background and the mitigation. D1 first.

According to the antecedent statement, D1 was born in Pakistan in 1986, so he is now 34 years old. He is a Form 8 recognisance holder. He is single and prior to his arrest, he lived in Quarry Bay. He claimed he entered Hong Kong illegally from the Mainland on 24 January 2008 and was referred to the Immigration Department for investigation. And he was released on recognizance on 28 February 2008. Removal order was issued on 15 April 2009.

D1 had a number of criminal convictions for the offence of remaining in Hong Kong without the authority of the Director of Immigration, after having landed unlawfully in Hong Kong. He was sentenced to 14 months’ imprisonment. For the offence of using an identity card related to another person, he was sentenced to 12 months’ imprisonment.

For an offence of breach of condition of stay, he was sentenced to 12 months’ imprisonment to run concurrently with the 12 months imposed for the using of an ID card relating to another person. And lastly, for possession of dangerous drugs, he was fined $2,000. He claimed to have completed secondary education in Pakistan.

Mr Trevor Beel, counsel for the 1st defendant, gave this Court some more information about the 1st defendant. This is in the written submission. Prior to arriving in Hong Kong D1 ran a small business in partnership, dealing in garments. He is single and his parents still live in Pakistan. His father deals in buying and selling second-hand cars.

In his written submission, Mr Beel referred to the procedural history and urged this Court to treat the guilty plea to handling as a fresh plea at the earliest opportunity and to give the defendant a full one-third discount from the starting point.

During the hearing, after this Court referred to the procedural history and indicated that a full one-third discount is not appropriate, Mr Beel submitted that D1 should get a 25 per cent discount. Mr Beel accepted D1 is a Form 8 holder and the sentence should be enhanced. He urged this court to consider the proportionality so that the enhancement is commensurate with the starting point.

Finally, Mr Beel reminded this Court that in the previous trial, D4, who was found guilty of handling, was sentenced to 3½ years’ imprisonment, while acknowledging that a sentence imposed by another judge is not binding on this Court. As to the authorities submitted by the prosecution, Mr Beel submitted that factor (1) and factor (5) in Webbe had not been made out against D1.

Now the 2nd defendant. The 2nd defendant was born in Pakistan in December 1982. He will turn 38 on the 26th day of this month. He is single and he resided at Jordan Road before his arrest. In 2008, he was arrested by the police for illegal remaining and he was referred to the Immigration Department for investigation. He was released on recognizance on 23 February 2008 and removal order was issued on 28 November 2019.

D2 has three previous convictions. Sorry, it should be 2009, not 2019. I think I might have made the mistake there. I cannot see why the removal order would be made 11 years later. It should be 2009, right?

MS YIP: In relation to D3’s removal order it was issued on 23 September 2015.

COURT: D2.

MS YIP: Sorry, D2’s was in 2019.

COURT: It was right?

MS YIP: 28 November 2019.

COURT: 28 November 2019 was correct?

MS YIP: 1-9, yes.

COURT: 2019.

MS YIP: 2019.

COURT: Right, I just wanted to make sure that I did not make a mistake, because I have written down 2019. I just suddenly wonder whether there was a mistake. All right. So it was 28 November 2019, removal order.

D2 has three previous convictions. For an offence of criminal damage, he was fined $1,000 and he was then convicted of two offences of possession of dangerous drug, both in 2014. He was put on probation for the former one, the first of the two dangerous drug cases, but the second one he was sentenced to 4 months’ imprisonment, suspended for 3 years. And D2 also claimed that he had completed secondary school in Pakistan.

Now Mr Peter Pannu, counsel for D2, in his written submission, also referred to the sentence imposed on D4 by the trial judge during the previous trial, that is, 3½ years’ imprisonment. Mr Pannu referred to the Admitted Facts and submitted that the handling was a joint enterprise between the four. Without a clear differentiation of their roles, the sentence ought to be in the same vein to ensure consistency.

Mr Pannu pointed out that D2 was not involved in the robbery but was involved in the handling of 585.86 carats of diamonds, out of 1,100.59 carats of diamond stolen. D2 did not gain anything financially. His role cannot be realistically said to be different from that of D4, even though D4 did not go to the Megabox meeting. It was submitted that the presence of D2 at the Megabox is really a continuous act of handling and is of de minimis in nature.

As to the authorities submitted by the prosecution, Mr Pannu submitted that apart from the guidance in Webbe and the enhancement for the Form 8 holders as postulated in Ali Saif, the other authorities are not particularly helpful. Mr Pannu submitted that D2 was not a professional handler, but merely an asylum-seeker in Hong Kong.

The value of the goods handled was half of the proceeds of the goods stolen. The asking price was HK$600,000. Finally, the agreement to sell was HK$400,000. Mr Pannu also referred to the case of Webbe and noted that anything below the amount of £100,000, British Pounds, that is HK$1.1 million, the guideline is 12 months to 4 years’ imprisonment.

So Mr Pannu stressed that D2 was not a sophisticated handler. The criminality is somewhat mitigated by:

(a) Isolated involvement in this crime.

(b) Not a professional handler.

(c) Little or no benefit accruing to D2.

(d) Recovery of part of the goods.

And lastly,

(e) Offer of a timely plea.

Mr Pannu submitted that D2, as with other defendants, always stood ready to offer a plea of guilty to handling, so he should be treated as having pleaded guilty at the first available opportunity and to have the full one-third discount.

During the hearing and after Mr Pannu heard what the court had said, he submitted perhaps a discount between 20 to 25 per cent is appropriate here. Mr Pannu also asked this Court not to activate the suspended sentence imposed on D2, as it is an offence of a totally different nature, the possession of DD.

Now D3. D3 was also born in 1986 in Pakistan, so he is now 34 years old. He is single. He lived in Hung Hom before his arrest. He was arrested by the police for illegal remaining on 10 February 2009. And he was referred to the Immigration Department for investigation. He was released on recognizance on 20 February 2009 and a removal order was issued on 23 September 2015.

D3 had one previous conviction of robbery in 2012, for which he was sentenced to 5 years and 3 months’ imprisonment. Mr James Sherry, counsel for D3, in his written submission also referred to the procedural history and submitted D3 should be treated as someone who had pleaded guilty at the first available opportunity to the fresh indictment and to give him one-third discount.

In his oral submission, Mr Sherry pointed out to the fact that the prosecution resisted strenuously the application from the defence to have Mr X, the informer, give evidence. D3 offered to plead guilty to handling after PW1 finished his evidence, which was rejected by the prosecution. Even after the Court of Appeal allowed the appeal against conviction, the prosecution still did not agree with D3’s suggestion to the Court of Appeal to find D3 guilty of handling.

So as a result, the prosecution only prepared the fresh indictment after the Court of Appeal handed down its judgment, and D3 pleaded at the first available opportunity. Mr Sherry accepted D3 is a Form 8 holder and his sentence should be enhanced for that reason. He asked the court to consider the proportionality of the enhancement to the starting point. He also referred to the sentence of 3½ years imposed by the other court on D4 for the same offence.

Regarding the authority submitted by the prosecution, Mr Sherry also submitted that factor (1) and factor (5) had not been made out here.

Now my consideration of the sentence. The Admitted Facts disclosed that PW1’s head was suddenly hit by a hard object from behind. PW1 felt dizzy and fell backwards. He was further assaulted by hard objects on his right back shoulder, right calf and his face. Someone snatched his shoulder bag containing the diamonds when he was being assaulted.

Because PW1’s head was hit from behind, clearly PW1 was taken by total surprise with this savage attack on his head. And after he fell down, he was further attacked and then his shoulder bag containing the diamond worth US$200,000 was snatched away from him, and he suffered head injury.

All three defendants, together with another South Asian male, met the undercover police, that is PW2, arranged by the informant, Mr X. And D3 showed the undercover policeman seven packets of diamonds, together with six GIA reports and 23 invoices of PW1’s company. Now according to the Admitted Facts, D1 told PW2 that is the undercover police, that they were stolen properties of a robbery in Hung Hom the month before. And D3 said the victim was hit with a metal pipe. And D1 and D2 said their friends had risked their lives for the diamonds. And D3 added that one of them had stumbled as they ran up the stairs and fled.

I agree with the prosecution that there are aggravating factors in this case, as mentioned in the English case of Webbe and adopted by the Court of Appeal in Cheng Chi Wai. That is to say, (1), (2), (3) and (6), because I do not think that the handling is sophisticated enough to be an aggravating factor under factor (5), as submitted by the prosecution.

So factor (1), the closeness of the handler to the primary offence. From what the three defendants told PW2 during the meeting at the karaoke bar at Megabox, all three defendants had intimate knowledge of the robbery. They knew full well the goods were stolen goods from the robbery and they actively assisted in the disposal of the stolen property.

I appreciate Mr Sherry’s submission that D1 to D3 could have heard about the robbery by the time they handled the diamonds 5 weeks later. On the Admitted Facts, I find that D1 to D3 showed that they did have intimate knowledge of the robbery, so they are close to the primary offence, the robbery. So this factor is made out.

Factor (2), particular seriousness in the primary offence. Well, PW1’s attack from behind with a hard object, which was later described as a metal pipe and he was continuously being beaten, even after he fell to the ground, before his shoulder bag containing the diamonds was snatched by the robbers. The primary offence was serious.

Factor (3), high value of goods to the loser, including sentimental value. Well, the diamonds worth around HK$1.56 million which is US$200,000. It is a significant value to PW1 who suffered the loss.

Factor (6), a high level of profit made or expected by the handler. At the karaoke bar meeting, D3 asked for HK$600,000 for the seven packets of diamonds, and the price eventually agreed was HK$400,000. So a high level of profit is to be expected by the handlers.

I accept that the value of the goods handled was less than the total of the diamonds stolen because the seven packets contained 585.86 carats, which is slightly over half of the total amount loss, that is, 1,100.59 carats. I will assume, for the purpose of sentencing, that the value of the 585.86 carats of diamonds was slightly more than US$100,000, slightly more than half of the total value.

I appreciate that D4 received a sentence of 3½ years after trial. I understand the starting point adopted by the trial judge was 3 years, with 6 months enhancement for D4 being a Form 8 recognizance holder. D4 did not appeal against the sentence, so the Court of Appeal had not been asked to consider if such a sentence were the proper one.

Whilst I agree that all four of them, that is D1 to D3 plus D4, this person called Imran, acted in a joint enterprise to handle the stolen goods, as there is no evidence that D4 appeared at the Megabox meeting and telling PW2 particulars about the robbery, there is no evidence of closeness of D4 to the primary offence, which cannot be said in the case of D1 to D3. So in my view, a proper starting point for this case of handling, bearing in mind that they were acting in concert as well, is one of 3½ years.

Now in D1’s case, although he is not a man of clear record, this is the first time he is convicted of a theft-related offence. I will not enhance the starting point by reason of his previous conviction. I will enhance the starting point by 6 months, to take into account the fact that he was, and still is, a Form 8 recognisance holder. So the enhanced starting point is one of 4 years.

D2 is also not a man of clear record, and his previous conviction included criminal damage and possession of dangerous drug. Again, I will not enhance his sentence by reason of his record, but I will enhance the starting point by 6 months to take into account the fact that he was, and still is, a Form 8 recognizance holder. So the enhanced starting point for D2 is 4 years.

D3. D3 is also a man not of clear record, but he already had a previous conviction of robbery and had been sentenced to 5 years and 3 months’ imprisonment in 2012. He was released in September 2015. The diamond robbery happened in March 2016 and the handling happened in April 2016. That means D3 committed this offence within 1 year after his release. So in D3’s case, bearing in mind his more serious previous conviction, his infringement of law as a Form 8 holder is more serious than either D1 and D3.

I am of the view that an enhancement of 8 months is appropriate to take into account his previous conviction of robbery and the fact that he was, and still is, a Form 8 holder. So the enhanced starting point for D3 is one of 4 years and 2 months.

Now I have to consider how much deduction to give to the three upon their plea. I was asked to treat all three defendants as having pleaded guilty at the first available opportunity upon the fresh indictment, after they successfully appealed against their conviction. I do not agree.

During the previous trial, they did not offer their plea to handling at the beginning of the trial. They only made their offer after PW1 had finished giving evidence, which I accept at the time, that was rejected by the prosecution.

Even though they indicated to the prosecution in a timely fashion that they would admit handling when faced with the fresh indictment, the history of this case does not support the claim that they pleaded guilty at the earliest or first available opportunity.

Having considered all the circumstances, including the further offer to be found guilty by handling by the Court of Appeal, upon their success in having the conviction quashed, which was rejected by the prosecution, I am of the view that a 25 per cent discount is appropriate.

So in the case of D1, with an enhanced starting point of 4 years, a 25 per cent discount would result in a sentence to 3 years. So D1 is sentenced to 3 years’ imprisonment for the alternative 2nd count of handling stolen goods.

D2, with an enhanced starting point of 4 years, a 25 per cent discount would also result in a sentence of 3 years. So D2 is sentenced to 3 years’ imprisonment for the alternative 2nd count of handling stolen goods. I will deal with the suspended sentence in a minute in D2.

D3, with an enhanced starting point of 4 years and 2 months, a 25 per cent discount will yield a sentence of 3 years and 1½ months. I will treat 1 months as having 30 days. Sometimes 31, so I will use 30. So half a month is 15 days, right? That is what I will use. So D3 is sentenced to 3 years and 45 days for this alternative 2nd count of handling.

Now in the case of D2, he was sentenced to 4 months’ imprisonment, suspended for 3 years for an offence of possession of dangerous drugs on 21 November 2014. So D2 has therefore committed the offence of handling within the 3 years’ suspension period. Although the offence of possession of dangerous drug is different from the offence of handling, I do not see any cogent reason for not activating the suspended sentence. So I will therefore activate the suspended sentence.

Having considered the totality principle, I order that only 2 months of the 4 months’ imprisonment, to run consecutively with the sentence of 3 years imposed in this case. In other words, of the 4 months suspended, you have to serve 2 months of that.