HKSAR v. EMRAN ABID AWAN

DCCC924/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 924 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to one count of robbery and was convicted accordingly. The Summary of Facts states that in the afternoon of 9 May 2011, a Pakistani (PW1) withdrew cash in the total sum of $349,000 from a remittance company in Tsim Sha Tsui.

2.  The money belonged to three other males, PW2 to PW4. PW1 took the MTR to Pat Heung and alighted at the Kam Sheung Road MTR station. PW1 also withdrew cash of $900 from an ATM machine and kept the money in his wallet.  PW1 also kept his Hong Kong Identity Card and Octopus card in his wallet and put his wallet in a white cloth bag.  He also put the $349,000 cash inside the said cloth bag. 

3.  At about 6:25 pm, a gang of five Pakistani males suddenly attacked PW1 outside Exit A of Kam Sheung Road MTR station.  PW1 was assaulted by the gang on his head and lower part of his body.  The culprits kept hitting PW1 for about 1 to 2 minutes and eventually were able to snatch the said white cloth bag and fled away.  PW1 could not see the faces of those culprits.

4.  It happened that an off-duty CSD officer, Ms Sin (PW5), was in the vicinity and she was able to witness the incident.  She made a report to the police. 

5.  Upon medical examination, PW1 was found to have sustained minor injures and he was discharged from Pok Oi Hospital on the same day.  The CCTV footage of the MTR station captured the images of the defendant and four other males wandering in the Kam Sheung MTR station. 

6.  The defendant was arrested in Yuen Long on 23 June 2011.  Under verbal caution, the defendant admitted that he was present at the scene at the material time and that he had assaulted a male.  In his subsequent video-recorded interview, with the assistance of the interpreter, the defendant repeated what he had admitted previously.  The defendant further said that prior to the incident he met four male acquaintances who were living in Yuen Long area.  One of the males asked him to assault a male.  The defendant agreed.  Later when PW1 appeared, the defendant and four others assaulted PW1. No stolen property could be found in the defendant’s residence. 

7.  On 5 July 2011, PW5 positively identified the defendant in an identification parade as the one who assaulted PW1.  The defendant participated in the robbery of the above said stolen property. 

Mitigation

8.  The defendant is a Hong Kong resident and was unemployed when he was arrested.  His wife andtwo young sons are in Hong Kong.  It was submitted that the victim sustained only minor injuries and there is no residual injury.  Counsel for the defendant said that the defendant is willing to cooperate with the police and to give evidence against the other culprits at large.  The defendant did not use any weapons nor would he receive any benefit.  His guilty plea would entitle him to have full discount in sentence.

Sentence

9.  The court was told that the defendant only provided certain nicknames of the culprits but not other contact details and at the moment no concrete result could be achieved.  I am told one culprit was arrested.  I am sure the police would approach the defendant again upon the latter’s guilty plea and indication today. 

10.  I would say this is a wise move for the defendant to plead to the charge for which he would receive one-third discount in sentence.         

11.  The defendant was born in Hong Kong and he is now aged 27.  He had a clear record.  He has his own family in Hong Kong.  There is no evidence to suggest that weapons were used.  All the culprits were Pakistani and so is the victim.  The large sum of cash withdrawn from the remittance company also belonged to, I believe, a group of three Pakistanis. 

12.  In my view, inference could be drawn that a clear target was set for this robbery which might be premeditated and in fact was committed by the group of five Pakistanis.  Under the principle of joint enterprise, the defendant bears the same culpability with other culprits, even though he was not the one who actually robbed the victim.  I am sure the victim was not chosen at random.  Although the defendant indicated that he is willing to cooperate with the police and to testify against other culprits, it is established that a promise to testify could not be taken as a substantial mitigation factor at the present stage.  The stolen property was not recovered and this was a gang robbery. 

13.  As this was an unarmed robbery, the case of Mo Kwong Sang as mentioned by the defence is not applicable.  I would consider the case of HKSAR v Lam Ka Hung CACC294/2003, where it was said that a proper starting point after trial for an offence of unarmed robbery would be one of 4 years.    

14.  In the present case, after considering the defendant’s clear record, his guilty plea and other mitigating grounds, I would be lenient to him because I have the feeling that this young defendant would turn a new leaf and would not re-offend again.  As such, I would adopt a starting point of 3 years and, with the one-third discount, the sentence is reduced to 2 years.