HKSAR v. HUSSAIN NAVEED AND OTHERS

DCCC 173/2017

[2018] HKDC 1356

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 173 OF 2017

____________

____________

REASONS FOR SENTENCE

1.  D1 and D2 stand convicted after trial of one joint charge of robbery, contrary to section 10 of the Theft Ordinance (charge 1)[1]. D3 pleaded guilty to the charge on 22 January 2018. Asim Nadeem (D4) who is charged with handling stolen goods has absconded.

2.  The delay in sentencing D3 arose because initially D3 was willing to give evidence for the prosecution.  The trial of D1 and D2 was adjourned in January and again in May 2018.  Prior to the trial commencing on 12 September 2018 D3 informed the prosecution in August that he was no longer willing to give evidence.

3.  Full particulars of the offence are set out in the facts admitted by D3 on 22 January 2018 and in my verdict handed down today. 

4.  In summary in July 2016 Liu Yang and Gao Feng were directors of Qiyu Telecommunication Technology Co., Limited which operated business from Room 1903, 19th Floor, Treasure Centre, No. 42 Hung To Road, Kwun Tong, Kowloon (“the office”).  The main business of the company was buying new mobile telephones from Japan and selling them to wholesale customers in Hong Kong.

5.  In the early afternoon of 12 July 2016 Mr Gao was in the office when he opened the main door and let in two Indian/Pakistani males, one of whom was D2. 

6.  D2’s role was to distract Mr Gao by asking about mobile phones while the other male looked to see what phones could be taken and to let the other robbers enter the office.

7.  A short while later the male walking round the office let in four other Indian/Pakistani males including D1 and D3.  At the same time D2 left the office.    

8.  One of the five males pulled Mr Gao to the sofa and picked up a paper cutter from a coffee table and threatened Mr Gao by holding the cutter close to his neck. This male then took Mr Gao’s mobile phone out of his trouser pocket. 

9.  The male gave the cutter to D1 who continued to point the cutter at Mr Gao’s neck and then ordered Mr Gao to stand and go to the toilet. 

10.  When Mr Gao came out of the toilet the five men had left taking with them stock comprising of 229 iPhones, 94 iPads, one MacBook and 105 smartphones, valued at $1,807,394 together with Mr Gao’s mobile phone. 

11.  The majority of the stolen property was recovered by the police two days later on 14 July from a flat on Un Chau Street in Sham Shui Po and from a taxi JU 7212.  Later the same day the police arrested D1, D2 and D3 at Room 412 Yue Tin House in Sham Shui Po.

12.  The fingerprints of D1, D2 and D3 were found on adhesive tape on carton boxes containing the stolen property recovered by the police from the flat in Un Chau Street and from the taxi.  Fingerprints of D1 were also found on a router kept in the office.  The DNA of D3 was identified from bloodstains found on two boxes located inside the office. 

13.  CCTV footage showed D2 and the other male entering the Treasure Centre and going to the 19th floor where they entered the office; D1 and D3 together with two other robbers enter the freight lift of the Treasure Centre and go to the 19th floor where they entered the office; D2 leave the office and take the lift to leave the Treasure Centre; and D1 and D3 together with two other robbers and the other male who entered with D2 leave the office and take the freight lift together with seven cartons containing the stolen goods.

Mitigation

D1

14.  In passing sentence, I have carefully considered everything said on behalf of D1 by Mr Parry, including that D1 was 21 at the time of the offence; is now a permanent resident of Hong Kong and has a clear record. 

D2

15.  In passing sentence, I have carefully considered everything said on behalf of D2 by Mr Lo, including that D2 has a clear record and that he came to Hong Kong in 2013 when he lodged a claim for asylum.

D3

16.  In passing sentence, I have carefully considered everything said on behalf of D3 by Mr Middleton, including that D3 has pleaded guilty, has a clear record and that he also came to Hong Kong in 2013 when he lodged a claim for asylum.

Guidelines

17.  In R v Mo Kwong Sang[2] the Court of Appeal laid down guidelines for armed robberies.  The appropriate sentence for an ordinary case of armed robbery where a knife or other dangerous weapon is carried and displayed is 5 years’ imprisonment.  I am satisfied that a paper cutter is a dangerous weapon[3].

18.  The Court of Appeal said that where the robbery involves the invasion of private premises, which includes domestic and business premises, a sentence of 6 years would be appropriate. 

19.  The Court of Appeal also said that sentences should be further increased if there are other aggravating factors, including threats made to the victim and the presence of more than one person in the group of robbers.   

20.  I accept the submission that the robbers did not go with any dangerous weapon. The cutter was picked up from the table in the office and no other weapon was used. 

21.  Although the robbers did not take the cutter with them or inflict physical violence on Mr Gao, the cutter was used to threaten Mr Gao and to order him to go to the toilet. 

22.  Taking into account the number of robbers; the robbery involved the invasion of business premises; the cutter was not taken to the office by the robbers; Mr Gao was threatened with the cutter which was pointed at his neck and ordered to go to the toilet; Mr Gao did not receive any injuries; mobile phones and iPads valued at just over $1.8 million were stolen and that most of the stolen property was recovered, I am satisfied the appropriate starting point after trial is 6 years’ imprisonment. 

23.  The commission of offences by refugees or torture claimants is also capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.  I am satisfied robbery of business premises affects the community and reputation of Hong Kong[4]. 

24.  Mr Middleton refers the court to HKSAR v Anil Kumar & others where the Deputy District Judge enhanced the sentence for robbery by 3 months by reason of the defendants being asylum seekers[5]. Mr Middleton asks that the court adopts the same enhancement.   

25.  Whilst robbery of a 7-Eleven convenience store in the early hours of the morning is a serious robbery, I am satisfied that the present robbery is more serious, in particular a cutter was used and the stolen goods were valued at just over $1.8 million.  I am satisfied an enhancement of 6 months is appropriate thereby increasing the starting point for D2 and D3 to 6 years and 6 months’ imprisonment.

Sentence

26.  D1 is sentenced to 6 years’ imprisonment.

27.  D2 is sentenced to 6 years and 6 months’ imprisonment.

D3

Discount for pleading guilty

28.  D3 first appeared in the District Court on 14 March 2017 and indicated his plea of not guilty on 30 March 2017.  The new sentencing guidelines in HKSAR v Ngo Van Nam therefore apply[6].

29.  The trial was set down for six days commencing on 21 August 2017.  On 21 August the trial was re-fixed for fifteen days commencing on 22 January 2018. 

30.  By letter dated 17 January 2018 solicitors for D3 wrote informing the court that D3 would plead guilty.  On the 22 January 2018 D3 pleaded guilty and agreed the summary of facts. 

31.  Mr Middleton submits that D3 should be given a discount of between 20-25% having indicated his plea of guilty prior to trial[7].

32.  The main reason for adjourning the trial in August was because the parties agreed the time estimate of six days was insufficient. 

33.  In HKSAR v Ngo Van Nam the court drew a distinction between what was the first reasonable opportunity for a defendant to indicate his guilt and the stage where a defendant exercised his undoubted right to avail himself of the opportunity for his lawyers to assess the strength of the case against him. 

34.  I am satisfied this is not a case where the defendant genuinely did not know whether he was guilty or not and needed advice or sight of the evidence in order to decide whether to plead guilty[8].

35.  Further, at the initial trial hearing D3 was privately represented by very experienced counsel[9]. D3 had every opportunity to plead guilty in August 2017.  I have no doubt D3 will have been advised on the evidence.  

36.  D3 having pleaded guilty before the trial started I am satisfied he is entitled to a discount of 20%.  D3 is convicted and sentenced to 5 years and 2 months’ imprisonment, which represents a discount of just over 20%.