HKSAR v. HUSSAIN IMRAN

DCCC 1153/2022

[2024] HKDC 1153

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 1153 OF 2022

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REASONS FOR SENTENCE

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The Plea

1.  The Defendant (“D”)  pleaded guilty before me to a single charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

Agreed Facts

2.  Mr Yim (“PW1”)  has been a staff at Caltex Petrol Station - Tong Yan Tsan Tsuen, the junction of Castle Peak Road and San Hi Tsuen Street, Yuen Long, New Territories (“L1”)  for more than 10 years.

3.  At around 0610 hours on 27 July 2022, while PW1 was working at the cashier at L1, D entered L1.  D was wearing a black top with two eyes imprinted in the front, dark-coloured trousers, a dark-coloured cap with “MCMXX” embroidered in the front and a pair of black and red gloves, and carrying a grey backpack.  D took a pack of Vita milk from the refrigerator and walked towards the cashier.  D showed PW1 a damaged $10 bill, which was rejected by PW1.  D then attempted to pay by an Octopus card but there was insufficient value in his Octopus card.  D left L1.

4.  Around 10 seconds later, D reentered L1 and approached the cashier.  He took out a knife which was around 3 inches long, pointed it at PW1 and said “robbery” (“打劫”)  in Punti.  D attempted to open the cash register but failed.  D demanded PW1 to open the cash register in Punti.  As D was carrying a knife in his hand, PW1 opened the cash register out of fear of being hurt.  D took some cash from the cash register and fled towards Ping Kwai Road.

5.  PW1 called the police.  After counting, PW1 confirmed that D had taken HK$1,740 cash from the cash register, including:

(a)  HK$ 100 x 9;

(b)  HK$50 x 6; and

(c)  HK$20 x 27.

6.  PW1 did not know D, nor has he ever seen D.

CCTVs

7.  The above incident was captured by the CCTV at L1: At around 0609 hours on 27 July 2022, D, who was in a black top with two eyes imprinted in the front, dark-coloured trousers, a cap with “MCMXX” embroidered on the front and a pair of black and red gloves, arrived at L1 in a bike.  He was carrying a dark-coloured backpack.  D took a pack of drink from the refrigerator.  He attempted to pay with cash and was rejected by PW1.  D then attempted to pay with a card.  D left L1 without taking the drink with him.  Around 10 seconds later, D reentered L1 and approached PW1.  D pointed a knife at PW1.  D attempted to open the cash register but failed.  PW1 opened the cash register.  D took cash from the cash register and left L1 in the bike he came in.

Identification

8.  At the identification parade on 4 August 2022, PW1 positively identified D.

Arrest

9.  At around 2125 hours on 27 July 2022, the police spotted D, who was wearing a black top and carrying a grey backpack.  Around 3 minutes later, D was arrested for “robbery”.

10.  At the material time, D robbed PW1 of HK$1,740.

Criminal record & background

11.  D has one previous conviction for theft offence recorded in 2007.  D is aged 39 (37 at the time of the present offence), educated to primary 5 level, Hong Kong resident.  His wife and his son are now living in Pakistan.

Mitigation

12.  Mr Philip Ross of counsel assigned by the Director of Legal Aid mitigated on behalf of D. 

13.  Firstly, the offence appears not to be premediated.  Secondly, the offence bears all the hallmark of an economic crime. 

14.  D is remorseful for his action and apologies to the victim.

Discussion

15.  Robbery is a serious offence, with a maximum penalty of life imprisonment.  I do not agree that the offence was not premeditated.  D came back with a knife, wearing a cap and a pair of gloves.

16.  In The Queen v Yau Kwok Tung [1987] HKLR 782, the Court of Appeal held that a sentence of 4 years is at the top end of the tariff for robberies where weapons were not displayed and 5 years where weapons were displayed: Mo Kwong-sang [1981]HKLR 610.

17.  In the present case, the offence involves a convenience store attached to a petrol station.  In HKSAR v Lam Hoi CACC 105/2016, the Court of Appeal stated that for robbery of convenience stores, the court can enhance the sentence to reflect for this aggravating factor and may attract 6 years’ imprisonment.  However, the Court also stressed that the sentencing court can adjust the sentences to accord with the record, age or other personal circumstances of the defendant or the particular facts before it (see paras 53-55 of the judgment). 

18.  Furthermore, convenience stores are open round the clock and are susceptible to robberies and have to be protected.  A deterrent sentence is warranted for those who rob these places (see Kwok Cheuk Man, at 702, para 31[1], per Yeung JA, as Yeung VP then was).

19.  I adopt a starting point of 5 years and 6 months, taking into account the fact that the place of crime is a convenience store. 

20.  Mr Ross submitted that he committed the offence out of grave financial hardship and pressure.  In HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 698, the Court of Appeal held that a sentencing court has a discretion to impose a lighter sentence where the offence was committed by the force of circumstances.  I accept that D might commit the offence out of family and financial hardship, separation from family during the pandemic.  I reduce the starting point of 5 years and 6 months to 5 years. 

21.  D pleaded guilty to the charge in a timely fashion.  He shall be entitled to the customary 1/3 discount in sentence.  There are no other mitigating factors of weight to justify another reduction in sentence.  That arrives at a final sentence of 40 months’ imprisonment.