HKSAR v. STAVTSEV MARK AND ANOTHER

DCCC1021/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1021 OF 2008

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Reasons for Sentence

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1.  D1 and D2 appeared before me this morning and pleaded guilty to a single count of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210.

2.  The particulars of offence aver that both defendants on 19 September 2008 at Room 742, Marco Polo Hong Kong Hotel, No. 3 Canton Road, Tsim Sha Tsui, Kowloon in Hong Kong robbed Yu Yuk-kam of one Maxim’s cake coupon, one piece of paper, cash of $1,014 US currency and cash of $500 Hong Kong currency. 

The facts

3.  According to the Summary of Facts which were admitted by both defendants, they met the female victim, PW1, outside Marco Polo Hong Kong Hotel, who at that time was soliciting clients for her massage service.  Both defendants invited PW1 to their hotel room for the massage.  And while the massage was going on, D1 asked PW1 for sexual service to which PW1 agreed at the price of US$100.  D2, similarly, asked for the same sexual service and they both had sexual intercourse with PW1.

4.  Afterwards, PW1 performed oral sex for the D2 on a sofa inside the hotel room and it was at that time that all out of a sudden, PW1 was strangled with a towel from behind by D1 who pulled the towel against PW1’s throat hard.   As a result, PW1 fell onto the floor with her face up and at that time D2 immediately jumped onto her and sat on her legs to restrain her movement.  PW1 was not able to put up any resistance and both defendants fisted her on her head, face and other parts of the body.  As a result, PW1 lost consciousness for an uncertain period.

5.  When PW1 later woke up from unconsciousness, she found herself tied on her feet and hands with towels.  Her neck was strangled with a bed sheet.  PW1 said that both defendants were chatting and drinking beer on the sofa.  And at one point PW1 slightly opened her eyes and could see clearly that D1 was searching her handbag by the bedside table and taking away some US dollars from her handbag.  Some time later both defendants went out of the room.  PW1 then struggled to make a call to the room service of the hotel and called for assistance.  A hotel staff opened the door and found PW1 naked with her neck strangled with a bed sheet.  Both of her hands and feet were tied with towels and PW1 was found bleeding all over her eyes, nose and mouth.  A report was made to the police.

6.  Upon checking, PW1 found that the items were stolen as particularized in the charge.  While the police was still investigating inside the hotel room, both defendants were found checking out at the lobby of the hotel and were thereby intercepted and arrested.  The stolen US dollars and Hong Kong dollars together with some other items were recovered both from D1 and D2.

7.  PW1 was taken by the ambulance to the hospital for medical attendance and upon medical examination PW1 was found to sustain the following injuries:

(a)  tenderness on the scalp;

(b)  multiple bruises on limbs;

(c)  haematoma on scalp, right penorbital and upper lip, and;

(d)  abrasion on left leg

8.  PW1 was hospitalised as a result for 13 days and she sustained no permanent injury.

Mitigation

9.  Both defendants have a clear record in Hong Kong.  They are Russian nationals.  In mitigation I was told that at the material time they were both working as a lighting engineer or technician with the Bolshoi Theatre of Russia and they came to Hong Kong on a ballet performance tour. 

10.  D1 is aged 26, a university graduate and both his parents were pianists.  A letter from his employer was submitted to the court which described D1 as a hardworking and devoted employee.  He was said to be a non-aggressive person and the theatre company has expressed surprise and disbelief of his present involvement in the present case. 

11.  D2 is now aged 30 and has a background of performing arts.  In a similar letter he was also described by the theatre company as a skilled professional with dedications to his job.  Like D1, the employer also described D2 as a quiet and non-aggressive character.  It seems from this comment that the present offence is quite out of the characters of both defendants. 

Sentencing

12.  Robbery is of course a very serious offence.  In the course of mitigation both the prosecution and defence counsel had referred me to the case of HKSAR v Ting Chiu [2003] 3 HKLRD 378 which involved four unarmed persons robbing a married couple who were having a walk at night.  The Court of Appeal held that the appropriate starting point was 4 years.  Likewise, in HKSAR v Lam Ka Hung, CACC294/2003, the Court of Appeal also adopted a similar starting point of 4 years for an unarmed robbery.  However, in the case of Mo Kwong Sang [1981] HKLR 610, Roberts CJ clearly stated that the use of violence on the victim by the defendant involving the tying up of the victim is a factor for enhancing the sentence. 

13.  The present case involves, as it were, the two defendants who had inflicted this unproportionate violence on PW1 and tied her up in the course of the robbery.  The level of violence inflicted on PW1 as revealed in her medical report is by any standard serious and is totally uncalled for.  As revealed by the summary of the facts of the case as well as the photographs of the hotel, it clearly reveals that PW1 was viciously attacked by both defendants.  There was in the photographs bloodstain over the pillow case as well as the towels.  As said, PW1 was hospitalised for 13 days as a result of the attack and luckily for her, she did not suffer any serious personal permanent injury. 

14.  Taking these into account, in my judgment, the use of the violence by both defendants and the level of the violence as well as the infliction of injuries on PW1 are all aggravating factors which justified an enhancement of the sentence by one year.  It has been urged on behalf of both defendants that they have a good or positive good character.  However, in sentencing of serious offences such as robbery, previous good character has little part to play in mitigation.  Also the fact that both defendants were at the time of the offence under the influence of alcohol is also no mitigating factor.

15.  Counsel for both defendants in the course of mitigation made it clear to the court that their clients’ voluntary consumption of alcohol or intoxication of alcohol was  only introduced by way of background explaining the reason of commission of the offence and they were not relied on by way of mitigation.

16.  No reduction should be granted for reason that the defendants are foreigners as a Russian national.  The Court of Appeal in many cases concerning foreign defendants have already said that the dislocation factor even if existed is a matter of very limited relevance and is not a matter of great weight. 

17.  Having considered all the matters in the round, the only mitigating factor which is relevant in the case is of course the defendants’ plea of guilty which a one-third customarily discount would be granted in order to reflect their plea of guilty of the matter.

18.  Based on the reasons above, after giving the proper discount of one-third, the sentence that I shall pass on each of the defendants is one of 40 months’ imprisonment.