HKSAR v. ARIF AQIB

DCCC 510/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 510 OF 2015

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Reasons for Sentence

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1.  The defendant has been convicted after trial on one offence of robbery.

2.  The facts of the robbery can be seen from the verdict I gave.  I do not propose to repeat them in any detail.

3.  The offence has been committed in February of this year at a park in Tsuen Wan where the victim was robbed by a gang of South Asian males, four in total.  Some force was used in the course of the robbery.

4.  So the defendant has been convicted after trial.

5.  The defendant is aged 20, so he is eligible for sentencing in other ways other than what would be the normal sentence of imprisonment for an offence of this nature.  Because of his eligibility, I have obtained reports on him, and they are the background report and report in respect of suitability for training centre. 

6.  The defendant’s prior conviction history consists of assault and theft convictions for which he has been placed on probation in 2010. 

7.  The report from training centre is quite detailed. It describes that the defendant was born in Pakistan and came to Hong Kong in 1998.  His academic performance has been poor and he has behavioural problems. Meeting with baneful peers is described.  He has in the past taken drugs and was first in trouble about the age of 15 when these convictions occurred.

8.  His performance under the statutory supervision probation is described as unstable and it is said that after the conclusion of that period of supervision he reverted to his old vices.  So this offence is committed out of impulsiveness and weak legal abiding concept.  There is also an outstanding offence relating to taking a vehicle.

9.  The conclusion of the report is that the defendant is both mentally and physically fit for detention and training centre.  General assessment of his behaviour and attitude says he is suitable for detention in such a centre.

10.  He does still a bit have a supportive family background and there is an unfortunate element of the family background in respect of his siblings. 

11.  The probation officer’s report does not differ much in its conclusions.  There is family support, regular visits.  The father appears to want to return the defendant to Pakistan after the conclusion of any sentence he might serve here.

12.  I have considered the appropriate approach to sentence in this case.  This is what could be described as an unarmed robbery. There is no general tariff for such a robbery, but the case of R v Yau Kwok Tung which is in 97 HKLR 782 said that a sentence of 4 years’ imprisonment for a robbery where no weapons  were displayed was described as at the top end of the tariff. 

13.  This offence as submitted by Mr Poon, I agree with him on this, could not be described as being appropriate for the imposition of the top end of the tariff of 4 years.

14.  There are aggravating factors to it in that it is a combination of people, it is not done alone, and some violence is inflicted to bring the victim to the floor, and a fairly valuable item such as an iPhone is taken.  But given the defendant’s youth and the overall nature of the crime, a sentence of below 4 years’ imprisonment would be considered if one was looking at a term of imprisonment. 

15.  But in this case the defendant lies in the category of person who is eligible to be sentenced otherwise by an immediate sentence of imprisonment.  He is at an age where the court is going to consider matters such as training and rehabilitation in sentencing.  It is being seen as a suitable intervention of a person of his age to put them back on the right track and prevent them by further re-offending, seeing that a period of training may be capable of achieving things that a sentence of imprisonment may not.

16.  Of course a sentence of rehabilitation should not be imposed if it would not adequately reflect the approach of society towards offences of this nature which requires that a normally deterrent type of sentence be imposed which is a sentence of imprisonment of substantial length.  And so one must consider whether a rehabilitation sentence such as training centre would be duly lenient in a situation such as this.

17.  Of course when looking at the term of imprisonment to be served, one must also bear in mind that even if the defendant has pleaded not guilty, he is entitled to remission, which in the normal course of events would take one-third off any sentence that will be imposed.  Say, for example, if the sentence of 3 years’ imprisonment or 3½ years’ imprisonment, it will lead to a sentence one-third less than that in actual -- which will actually be served. 

18.  A sentence to training centre can lead to detention of between 6 months and 3 years, depending on the progress that the particular trainee makes during of the course of his punishment.  So it may be that in the imposition of a training centre order, the actual period of detention may not be substantially different from that imposed under a prison sentence.  I consider that where there may not be a substantial difference, then the court is entitled to consider rehabilitative sentences for defendants such as this.

19.  My approach in this case is that the defendant would clearly benefit from training.  He has become, I think, what we could describe as a wastrel, given to petty crime.  He needs to be shown the error of his ways and trained to prevent him re-offending in this kind of manner, and it would appear to me both he and society would benefit from him going to a training centre, him in the ability to give him a better approach to understanding lawfulness and society would benefit in his being trained in such a way to prevent him immediately falling back into criminality. 

20.  Taking all these factors into account, what I propose to do is make the order recommended by the Correctional Services Department and that will be a training centre order for the defendant in respect of the offence for which he has been convicted.