HKSAR v. NISHANT

DCCC 1270/2023

[2024] HKDC 1301

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1270 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of robbery and another 14 charges related to theft and attempted theft; the offences occurring on 13 and 14 August 2023.

2.  The facts of the robbery as follows. On 13 August 2023 at 1110 hours outside Wo Or Building in Central, the defendant attacked a lady, PW1, who was 72 years old. He attacked her from behind and she fell to the floor. He opened a waist bag, took out 11 credit cards, $3,000 in cash and her mobile phone, which is worth $8,000. The matter was reported to police.

3.  As a result of the attack by the defendant on the victim, PW1 was sent to A&E Department at Queen Mary Hospital. Her injuries were as follows: tenderness on the left scalp, left face, right elbow, right knee, and chest; bruising on the left scalp; swelling on the left face; and abrasions on bilateral elbows and right knee. She was later examined by another doctor and the same injuries were discovered. I am told that she has been discharged on the same date and I am assuming, as there is no information to the contrary, that she made a full recovery.

4.  As far as the thefts and attempted thefts are concerned, they involve some five of the credit cards which were taken from the victim’s purse. There were a total of 11 credit cards taken, but the defendant made unauthorised transactions which, either attempted or successful, using five of the cards. Those transactions are set out in the Agreed Facts. They have been agreed. I do not propose to go through all of them at this stage. Suffice to say the items that were obtained, or attempted to be obtained, were items such as a gold chain, valued at $13,000; an iPhone of $8,899; attempt to buy another iPhone valued at $10,278; items such as T-shirts, camera bags, bottles of perfume, sunglasses, shoes, wallets, general consumer items, also some consumables such as cigarettes and burgers.

5.  Overall summary would be that there were five attempts at theft with a card with a value of around about $27,000; and actual thefts that succeeded with the cards, there were nine of those, with a value of about $26,000. So an overall total value of over $50,000, with an actual value of some $26,000; these occurring over two days.

6.  Now the defendant was arrested on 15 August 2023. Some of the items were found on a search and those are as follows: an iPhone, the subject of Charge 3; a Gucci wallet, the subject of Charges 10, 11; Octopus cards, that is in Charge 13; glasses; a black Nike T-shirt as in Charge 8; and a pair of Vans shoes as in Charge 9. Some other items were also recovered from a house search from the defendant’s home. And in relation to four of the charges, items were recovered.

Defendant’s personal circumstances

7.  He was born in India in December 2001. He was brought to Hong Kong in 2002 and has been resident ever since. He is a permanent resident of Hong Kong, receiving education in Hong Kong; receiving some vocational training, but has worked as a kitchen worker and a bartender and in construction sites.

8.  He has one previous conviction recorded in 2021 for arson, for which he was fined. It appears to be unrelated to the existing charges.

9.  Mitigation put forward by Mr Chan is that the defendant had consumed alcohol on the night in question and as a result of that showed a very large lack of judgment and self-control and gave into the temptation to commit this offence. He does see some mitigation in the offending; that it cannot be said to be premediated, or planned, or elaborate, on his part. However, the assault of perhaps an elderly lady one could describe her, is an aggravating in any robbery. It must be very distressing to her and injuries were caused.

10.  The defendant, I am told, is remorseful and that these offences are out of character for him. I have also received correspondence from his father, which I have read, describing his son’s remorse of these events, and also the fact that he, to a certain extent, relies on his son for care during the day.

Sentence

11.  Clearly, the most serious offending is the robbery. It is described properly as an unarmed robbery; no weapon of any description was used in this. Force was used which caused injury, which makes it more serious; and force was used on an elderly lady, which again makes it more serious.

12.  The tariff sentence in respect of robbery that can be found in Mo Kwong Sang, which is at CACC 359/1981, relates to robberies where weapons are used or displaced, and starts at 5 years’ imprisonment. Clearly, that is not a tariff or guideline for this particular kind of offending.

13.  There are cases that relate to robberies where no weapons are used, such as Yau Kwok Tung at CACC 17/1987, where a sentence of 4 years’ imprisonment in respect of an unarmed robbery was said to be at the top end of the tariff for such robberies.

14.  It is the case that as a matter of principle the starting point for sentence in an unarmed robbery should, as a matter of principle, be lower than that for an armed robbery. Taking all these factors in consideration, I consider in respect of the 1^st charge, the appropriate starting point for sentence would be close to 4 years; I take the starting point of 45 months’ imprisonment. The defendant is entitled to the full one-third discount from that, leaving the final sentence on the 1^st charge of 30 months’ imprisonment.

15.  I deal now to the other 14 offences: five of attempted theft and nine of actual theft. The aggravating factor in respect of these offences is that they involve the use of some five credit cards. And there is separate guidance and tariff for the use of credit cards in either obtaining items by deception, or obtaining items by theft, or attempting to obtain items by theft. I have been referred to the case of HKSAR v Tu I Lang, that is at CACC 464/2006, where it said a sentence of 3 years’ imprisonment or less is appropriate for simple cases of counterfeit credit card fraud or using a genuine card to obtain by deception. These tariffs are appropriate to a simple case of credit card fraud or where stolen credit cards are used.

16.  More recently, in the case of HKSAR v Li Chi Yat, CACC 189/2018, again looking at what are described as small scale credit card offences, said to be not be able to subject to strict guidelines because they vary significantly in a number of ways, so that the starting point of 3 years’ imprisonment or less would be appropriate in cases such as that. In that case the court took the view the appropriate starting point was one of 2 years’ imprisonment.

17.  In this case, these are properly described as small scale. The offence took place over two days; the cards were used shortly after they had been stolen. No sophisticated planning, no international dimension; the cards were used in a spontaneous way. Nevertheless, it is still a serious offence to use this lady’s credit cards in that way. I shall take, in respect of each of these 14 charges, a starting point at 30 months’ imprisonment, reducing that to 20 months’ imprisonment for the defendant’s plea of guilty.

18.  Of course, all these charges occur on separate occasions although they are clustered together and could, technically, be served consecutively. However, that would lead to an absurdly long sentence. I must look at what is the correct overall totality for the defendant’s offending. The defendant’s offending is serious here. The assault on an elderly lady is serious. The use of her cards is serious and cynical and it deserves a substantial sentence of imprisonment for starting point.

19.  What I consider appropriate is a starting point for sentence for the overall total of these offences in the region of 5½ years’ imprisonment which would lead, after deduction for a plea of guilty, to a final total sentence of 42 months’ imprisonment. I shall achieve that by ordering that the sentences on Charges 2 through to 15 be served concurrently one to another, but 12 months of them be served consecutively to that of the 1^st charge; that leads to an overall sentence of 42 months’ imprisonment.