HKSAR v. BALJIT SINGH AND ANOTHER

DCCC 105 & 789/2017(CONS)

[2018] HKDC 852

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 105 & 789 OF 2017 (CONSOLIDATED)

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Reasons for Sentence

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1.  The defendants are charged on one indictment. They are jointly charged with robbery, and the 1st accused is charged with a second as failing to surrender to custody without reasonable cause. The 1st defendant was convicted on the 1st charge after trial. The 2nd defendant has been convicted on his own plea on the 1st charge and gave evidence against the 1st defendant on that charge. On the 2nd charge, the 1st defendant has pleaded guilty, accepted the facts and has been convicted.

2.  The charges against these defendants, and certainly the charge of robbery where they are jointly charged, arose out of a robbery that occurred on 13 October 2016 at about 5 am in the morning when the victim, a 58-year-old lady, was robbed whilst she was walking along Tai Nan Street in Sham Shui Po.  

3.  As far as the defendants are concerned, the robbery was pursued as a joint enterprise.  The 1st defendant had followed the victim and notified the 2nd defendant of the opportunity to rob this victim.  The 1st defendant then acted as a lookout whilst the 2nd defendant on the other side of the street had robbed the victim. Robbery consisted of him running up to her, pushing her.  She fell to the floor.  There was a struggle, and her handbag was taken.  The defendants then fled the scene, the 2nd defendant disposing of the victim’s bag under a lorry.

4.  The items actually stolen were items such as a smartphone and a wallet and various cards totalling about $600 of cash.  The bag was later retrieved by the 1st and 2nd defendants.

5.  The defendants were later identified and arrested by the police.

6.  As far as the 2nd defendant is concerned, he made a non-prejudicial statement and gave evidence for the prosecution against the 1st defendant at trial, and his evidence was accepted by the court and instrumental in the conviction of the 1st defendant. 

7.  As far as the 2nd charge faced only by the 1st defendant, that relates to a non-appearance of this defendant in court. On 23 February 2017, the 1st defendant was due to appear in court, and the defendant did not attend on that day.  An arrest warrant was accordingly issued against him.  On 12 June 2017, the defendant was stopped and searched in the street and then arrested.  2nd defendant admits those facts. 

8.  As far as the two defendants are concerned, their background, the 1st defendant is aged 32, is from India, has one previous conviction in Hong Kong for indecent assault, for which he was fined.  Sorry, he actually was imprisoned for 1 week.

9.  The 2nd defendant is aged 28, also from India.  He has two convictions, one for assaulting the police in May of 2017, for which he received 4 weeks’ imprisonment.  On 27 July 2017, he was sentenced to 2 years and 4 months for robbery.  That robbery was in fact committed after this robbery.  So at the time of this robbery, the defendant had no convictions for robbery.  Another fact of the defendants’ background that is relevant: they are both Form 8 holders in Hong Kong.    

10.  Going to the questions of sentence, there is no actual guideline for the offence of unarmed robbery, this being an unarmed robbery, but there are previous cases which suggest that the most serious form of that robbery would lead to a starting point for sentence of 4 years’ imprisonment.  Of course, the circumstances in which an unarmed robbery can be committed can be very varied, ranging from a simple snatching unarmed up to a serious assault that has happened.  

11.  I have been referred to the case of Ku Kwok Wai Crim App 14 of 2012 where in a series of facts which are very similar to the present case, a starting point of 3 years and 3 months was adopted for the offence of robbery.  In that case, as in this case, the robbery was a joint enterprise which can be an aggravating factor but only one of the people involved in the robbery was actually seen by the victim, similarly the victim being pushed to the floor and there being no substantial injuries caused.

12.  I do consider that this case represents a position on the range of sentencing which is clearly appropriate for this kind of robbery, and I would adopt it as a starting point in the calculation of sentence in respect of these particular defendants in this case.   

13.  There are some further factors in relation to these matters for consideration in respect of each individual defendant.  For example, the 1st defendant faces an additional charge, and the 2nd defendant entered a plea of guilty that has assisted the prosecution.   

14.  I shall now indicate my approach to the sentencing of each individual defendant.  As far as the 1st defendant is concerned, he faces the two offences.  He had pleaded guilty to the second offence.  He is a Form 8 holder and, as I understand, he has received somewhat tragic news in relation to his son in India who died in an accident in February 2017.  The defendant also identifies himself as having now become a consumer of drugs. 

15.  In respect of him, having considered all the factors relevant to sentence, I will adopt the initial starting point of 3 years and 3 months or 39 months for his role in the robbery.  The defendant is a Form 8 holder and that is now considered by the appellate courts as being an aggravating factor in sentencing.  Clearly, this is the kind of offence where the court should consider this as an aggravating factor.  It is a clear attack on the Hong Kong public.  As it is the defendant’s first offence of this nature, I will increase the sentence for that factor by 3 months. That leads to a sentence on the 1st charge of 42 months’ imprisonment.  There are no other matters to be considered in mitigation.  So the defendant’s sentence on the 1st charge is one of 42 months’ imprisonment.

16.  The defendant also faces the 2nd charge concerning his non-attendance of court.  He attributes this to the receipt of the tragic news about his son in February 2017.  His son had been killed in a road traffic accident in India.  He said it made him unable to consider any matters, made him unable to consider matters such as the attendance of court.  The defendant was in fact on the run, as it were, between February and June of that year.

17.  I take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty on that charge.  Clearly, it is a separate identifiable offence and that those 2 months will be served consecutively to the defendant’s 42 months on the 1st charge, leading to a total of 44 months’ imprisonment in total.

18.  As far as the 2nd defendant is concerned, he faces only the 1st charge.  He has the added mitigation of not just the plea of guilty but also assistance to the prosecution.  Clearly, witnesses, even participants in crime who go to the trouble of making statement and giving evidence against their co‑defendants, clearly, defendants in this category stand to be encouraged by the court.  They are a valuable way in which crime is detected in prosecuting and in bringing successful prosecutions against other defendants.

19.  It has been said that discounts of up to 50 per cent from the original starting point can be given in appropriate cases.  In this case, I note the 2nd defendant did give evidence, and his evidence has been accepted by me and led to successful conviction.   

20.  As far as he is concerned, I approach this as being his first offence of robbery.  This is a joint enterprise.  So, accordingly, as with the 1st defendant, the initial starting point for sentence is one of 39 months’ imprisonment.  He is also subject of course to an enhancement to that starting point as a result of him being a Form 8 holder.  I shall increase the sentence, as I did with the 1st defendant, by 3 months’ imprisonment to a figure of 42 months’ imprisonment.  I shall grant this defendant the full 50 per cent discount.  His sentence is therefore one of 21 months’ imprisonment.

21.  This defendant is at this time serving a sentence of imprisonment for robbery.  I must indicate whether this sentence is to be served consecutively or concurrently or partly consecutively and concurrently.  The offences of robbery were committed within a short space of each other, and had they been dealt with together, no doubt the sentences would have overlapped.  The defendant has almost completed the sentence in respect of the second offence committed.  Having regard to the question of the proper overall totality, what I shall order is that 12 months of this sentence to be served consecutively to his existing sentence, the balance concurrently.