HKSAR v. IJAZ MUHAMMAD AND ANOTHER

 DCCC681/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 681 OF 2009

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Reasons for Sentence

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1.  Upon the application by the prosecution, I granted leave to amend the charge from one of robbery to that of theft. For the avoidance of any confusion, Charge 1 against D1 in the original charge sheet would disappear. The defendants pleaded guilty to the amended charge and admitted to the Summary of Facts tendered by the prosecution.

The Prosecution’s Case

2.  At about 8.15 pm on 6 May 2009, the 59-year old victim and one Madam Chiu (PW3) were walking along Man On Street in Tai Kok Tsui. D1 pulled the victim’s handbag from behind and that caused the victim to lose her balance. And she fell down. D1 then grabbed the victim’s handbag and fled.

3.  The CCTV system installed nearby captured the incident and the footage showed that D2 was walking behind the victim when D1 snatched the victim’s handbag. A passer-by (PW4) chased after the culprit but lost sight of the latter near the park. PW4 saw two South Asian males follow the culprit into the park.

4.  Soon thereafter, at about 8.30 pm, the police saw D1 and D2 inside the Tung Chau Street park. Upon seeing the police, D2 put his hands behind his body and both defendants sat down on the bench. D1 was holding the victim’s purse. A stolen mobile phone was found on the bench where D2 sat. The stolen handbag with the contents belonging to the victim was found on a stone‑bed nearby. In addition, the victim’s two credit cards and three bankbooks were also located in the vicinity. The victim said that her handbag contained: 1 purse with $3,000; Hong Kong ID card; Home visit permit; 1 Octopus card; 1 bank card; 1 credit card; 3 bank passbooks; 1 mobile phone; 3 notebooks; name cards; cosmetics; and 1 ring.

The victim identified her stolen property on 7 May 2009.

Mitigation

5.  D1 is aged 27 years old. He had indicated his guilty plea to a count of theft all along. He gave an NPS to the police which was accepted by the prosecution. D1 agreed to testify against D2. D1 admitted the offence but said it was committed with D2 and a third man. It was submitted that the only evidence against D1 was the CCTV evidence and there was no identification evidence.

6.  D1 has his family in Pakistan and he studied up to Grade 8 in Pakistan. He came to Hong Kong via China. He has no similar previous conviction but agreed that he was convicted of one count of remaining in Hong Kong back in May 2008, for which he was sentenced to 9 months’ imprisonment. Counsel for D1 claimed that this was a foolish act committed by D1.

7.  Counsel submitted two cases for reference: HKSAR v Chan Sin Leung, CACC48 of 2006 and HKSAR v Lee Chi Man, CACC387 of 2006.

8.  Counsel for D2 submitted that the most important mitigating factor is D2’s guilty plea. D2 committed the offence because he had no money. D2, being an asylum seeker, did not explain why he could not get an allowance from the Social Welfare Department or from the UN authority. Counsel accepted that as far as the sentence is concerned there is no distinction between the thief and the lookout. The plea came late and it came only after the charge was amended.

9.  The prosecution confirmed that D1’s NPS was taken yesterday and the prosecution found the statement of use to implicate D2 and would accept D1 as one of the witnesses to testify against D2.

Sentence

10.  The most important mitigating factor for both defendants is their guilty plea, even though the plea from D2 came at a later stage and apparently consequent upon the taking of NPS from D1. At the same time, the plea of course was the consequence of plea-bargaining. D2 has no previous conviction but I was told that he is awaiting the result of the case concerning one count of breach of condition of stay.

11.  In the present case, a 59-year old lady was approached by the defendants at night. Fortunately, she did not suffer any loss or any physical injury but she did fall onto the ground because of the force. The stolen property was found near the defendants in the park and D1 was holding the victim’s purse. I consider that the evidence against both defendants is strong and it is wise for them to plead to the offence of theft.

12.  I would not consider D1’s previous conviction and D2’s pending case for the present purpose.

13.  Both of the defendants do not have the right of abode in Hong Kong.

14.  I considered the two CA cases mentioned above. Similar to the case of Lee Chi Man, although the present case might not be the worst case of its type, it is certainly high on the scale and the incident was very close to robbery.

15.  Taking the whole circumstances into account, I would adopt 2 years’ as the starting point. D1’s guilty plea made him entitled to have one-third discount which reduced his sentence to 16 months. I also take into account D1’s willingness and usefulness to implicate the co-accused. To this end, I further reduce D1’s sentence by three months. As such, I would imprison D1 for 13 months’ imprisonment.

16.  As regards D2, I also took 2 years as the starting point. Although his plea came late and was consequent upon D1’s willingness to testify, I am prepared to give him the full one‑third discount. Accordingly, I sentence D2 to 16 months’ imprisonment.