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DCCC 1073/2018
[2019] HKDC 716
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1073 OF 2018
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| Before: |
HH Judge Johnny Chan |
| Present: |
Mr Wong Shun Yin, Terry, counsel on fiat, for HKSAR |
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Mr Wu Kam Fun, Roderick, instructed by Tang, Lai &
Leung, assigned by the Director of Legal Aid, for the
defendant |
| Offence: |
Attempted Robbery (企圖搶劫罪) |
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REASONS FOR SENTENCE
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1. The defendant was a Form 8 holder at all material times of this case. He pleads guilty to a charge of attempted robbery which he committed against a female victim with the use of chilli garlic water at the car park of an industrial building in the afternoon on 9 May 2018.
2. Madam Lam, the victim, was the owner of a travel agency located at a room in New East Sun Industrial Building, Number 18 Shing Yip Street, Kwun Tong, Kowloon.
3. At around 3.35 pm on the day in question, Madam Lam was walking at the disabled access path inside the car park of the industrial building near the lift lobby and she discovered that a South East Asian male (later known as the defendant) was walking towards her from the opposite direction.
4. As they were about to walk past each other, the defendant suddenly used both of his hands to snatch Madam Lam’s bag but Madam Lam dodged it. The defendant then tried to use his right arm to choke Madam Lam’s neck but was unsuccessful as she lost balance and fell onto the floor. The defendant tried to snatch Madam Lam’s bag again but she pushed him away. Madam Lam was then unable to see clearly as she dropped her glasses as well.
5. During the attack, Madam Lam felt that some liquid was sprayed onto her eyes. She felt painful and irritated. Madam Lam then tried to open her eyes and had a short glance of the defendant. She was then unable to open her eyes. She smelled that the liquid contained scents of chilli and garlic. Madam Lam then shouted for help. Subsequently, Mr Tong, the supervisor of the car park, came to help Madam Lam wash her eyes and Madam Lau, a cashier staff of the car park, and another staff member also came to assist.
6. Mr Tong confirmed that he smelled a very strong, irritating smell which was like onion, garlic, chilli and pepper when he encountered Lam.
7. Madam Lau also confirmed that she smelled something like chilli and onion on Madam Lam when she encountered her.
8. Madam Lam was sent to United Christian Hospital for treatment and it was recorded that she suffered from tenderness and redness on both eyes.
9. CCTV footages were seized from the car park and various locations nearby. The footage of the car park captured the incident. The footages of various locations nearby captured that the defendant was wearing a Muslim cap, a pair of black trousers with orange lining and a pair of red trainers and was carrying a red rucksack throughout when he was near the car park.
10. The defendant was intercepted and searched by the police at around 9.30 pm on 31 May 2018. The body search of the defendant revealed that he possessed a Form 8, one smartphone and a bunch of keys. He was arrested for the offence of assault with intent to rob. Under caution, the defendant said, “I don’t know” and refused to sign on the police notebook.
11. On 2 June 2018, a house search was conducted at the 1st Floor, Number 258 Tai Nan Street, Sham Shui Po with the keys seized from the defendant. The police found a red rucksack which contained a pair of black trousers with orange lining and a pair of red trainers.
12. Madam Lam positively identified the defendant as the person who tried to snatch her bag in an identification parade held at Tseung Kwan O Police Station on 2 June 2018.
13. DNA examination of the pair of black trousers and the pair of red trainers seized yielded significant results linking the items to the defendant.
14. The seized smartphone was examined. The police found same photos which showed that the defendant was wearing a Muslim cap and a pair of red trainers bearing a similar appearance as the ones shown in the CCTV.
15. At all material times, the defendant attempted to rob Madam Lam at the car park of the Ground Floor, New East Sun Industrial Building.
16. The defendant is 36 years old and single. He was born in Pakistan and came to Hong Kong in 2013. He has received no education. He could speak, read and listen to Urdu. He knows very little English. He cannot speak or read any Chinese or Cantonese. He lived at a rented room in Sham Shui Po. He has a clear record in Hong Kong.
17. I am grateful to Mr Wu for the detailed written mitigation. Mr Wu draws my attention to the clear record, remorse and guilty plea of the defendant. Mr Wu submits that the defendant was in need of money to pay for the medical expenses of his mother who had to go through an urgent operation in a private hospital in Pakistan.
18. In sentencing the defendant, I have borne in mind the facts of the case and the information placed before me. My attention is drawn to the following cases: (1) R v Cheung Wai Yee, 1994 No 388 Criminal; and (2) HKSAR v Anil Kumar and 2 others, DCCC 265/2016.
19. In Cheung Wai Yee, the Court of Appeal held that a starting point of 4 years’ imprisonment after trial was appropriate for a robbery which involved the throwing of pepper in the victim’s face.
20. In Anil Kumar, the court was referred to the decision of HKSAR v Chan Sai Chu [200] 1 HKLRD 478 where the Court of Appeal held that for robbery involving pepper throwing, a starting point of 4 years’ imprisonment was appropriate.
21. In the present case, not only did the defendant try to use his right arm to choke the victim’s neck, he also sprayed the victim’s eyes with liquid with a strong irritating smell of onion, garlic, chilli and pepper which caused pain and irritation to the victim’s eyes.
22. In my judgment, the attempted robbery in the present case calls for a starting point of 4 years’ imprisonment. The defendant was a Form 8 holder when he committed the offence; his non-refoulement claim is yet to be determined. As the Court of Appeal said in HKSAR v Shah Syed Arif, CACC 298/2015,
“As we have said, no issue is taken with the obvious proposition that those who are privileged to be permitted to remain in Hong Kong and to be at liberty whilst their various claims for asylum are being determined by the authorities, are required to behave themselves and abide by the laws of this jurisdiction. If they abuse that licence by deliberately engaging in serious criminal activities aimed at the very community which has granted them that privilege, and if the crime in which they engage has the effect of tarnishing Hong Kong’s reputation for order and security, which are the very qualities they are seeking to secure for themselves, then that is a factor capable of aggravating the seriousness of their crime.”
23. It is obvious that the offence of attempted robbery is a serious offence. It has the effect of tarnishing Hong Kong’s reputation for order and security. In my judgment, the starting point should be enhanced by 3 months for the reason that the defendant abused his status as a Form 8 holder by committing the crime under complaint. The defendant is entitled to a one-third reduction for his guilty plea and clear record.
24. For the reasons given, I sentence the defendant to 34 months’ imprisonment.
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( Johnny Chan ) |
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District Judge |
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