HKSAR v. FAISAL KHAN

HCCC 106/2020

[2020] HKCFI 2498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 106 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The accused was charged with two counts of robbery, contrary to section 10 of the Theft Ordinance. Charge 1 alleged that he, on the 26th day of May 2019, at the 7th floor of Foremost Building in Yau Ma Tei, robbed X of cash HK$1,000. Charge 2 alleged that he, on the 28th day of May 2019, at the 8th floor of the same building robbed Y of cash HK$1,000.

The accused pleaded guilty to both charges before the magistrate at the committal stage, and was on 25 May this year committed to the Court of First Instance for sentence. Today the accused confirmed his plea and admitted the Summary of Facts before me.

X and Y were sex workers operating one-woman brothels on the 7th floor and 8th floor of Foremost Building. At about 6.15 pm on 26 May 2019, the accused posed as a customer and gained entry into the flat of X. While he was having sex with X, suddenly the accused grabbed her neck and covered her mouth with a tissue paper. He demanded money from X and took $1,000 from her. Before he left, the accused threatened X not to report to the police as he had a knife. This is the subject matter of Charge 1.

At about 2 pm on 28 May 2019, the accused posed as a customer and gained entry into the flat of Y. When Y was massaging the accused after they had sex, the accused claimed that he had lost his money and searched around the flat. Y argued with the accused and he pushed Y onto the bed, covered her mouth with his left hand and grabbed her neck with his right hand. The accused released Y after five seconds and she tried to message her friends. The accused used a pair of scissors he brought along to point at Y, ordered her not to use the phone and to show him the properties in her handbag. Eventually he took $1,000 from Y and left. This is the subject matter of Charge 2.

The accused was arrested at Foremost Building at about 10.30 pm on 31 May 2019 and admitted under caution that he had robbed two sex workers in Foremost Building a few days ago as he was in need of money. In the video-recorded interview subsequently conducted, the accused identified himself in the relevant CCTV images of Foremost Building. Regarding Charge 1, the accused said he stole $500 from the wallet of X when she was taking a shower. Regarding Charge 2, the accused said he stole $500 from Y when she was taking a shower after she had massaged him and had sex with him.

In an identification parade held on 2 June 2019, Y identified the accused as the culprit who had robbed her on 28 May 2019.

The accused is 24 years of age. He was born in Pakistan and came to Hong Kong at the age of 6 or 7. He was educated up to Form 1 in Hong Kong. He was single and lived with his family. The accused had previously worked as a delivery worker. Prior to his arrest, the accused had been unemployed for four to five years and depended on his family for living.

He had 11 previous convictions including one conviction for possession of dangerous drug, two convictions for theft and eight convictions for obtaining property by deception or attempted to obtain property by deception. He was last discharged from Lai Sun Correctional Institute on 29 September 2017.

In mitigation, counsel for the accused, Mr Richard Donald, informed the court that the accused was a drug abuser since the age of 18, consuming about 200 to 300 grammes of ‘Ice’ a day. This is confirmed by the urine test report upon his admission to Lai Chi Kok Reception Centre on 3 June 2019 with a positive result for amphetamine. Counsel said the drug addiction clearly had an influence on the accused’s conduct.

Counsel pointed out that the offences committed were not the worst of its type. Minimal physical force was used against the victims and they did not sustain any injuries. In Charge 1, knife was mentioned as a threat but no knife was actually produced. In Charge 2, the blades of the pair of scissors used was 1½ inches long. Counsel urged this court to impose a lenient sentence as the accused is remorseful, and he pleaded guilty at the first opportunity. The accused’s father passed away in May this year while he was being detained, and he is keen to take responsibility for his mother upon his release.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, the accused’s personal circumstances and the mitigation advanced on his behalf. I accept counsel’s submission that this case is not the worst of its type. No injuries were caused to the victims. The accused pleaded guilty at the earliest opportunity and is entitled to the full one-third sentencing discount.

In the cases of HKSAR v Cheng Fuk Wa, CACC 442/2005, HKSAR v Lai Kwok Fai, CACC 346/2008, and HKSAR v Tam Kwok Keung [2011] 1 HKLRD 141, the Court of Appeal has made it clear that a deterrent sentence is appropriate in cases like the present one as sex workers in one-woman brothels are vulnerable targets of robbery because of their profession and should be protected.

In the present case, the robberies were committed on sex workers operating one-woman brothels who were alone in their respective flats. In Charge 1, no weapon was used in the commission of the robbery, but the accused grabbed the neck of X to demand money. After money was taken, the accused threatened X that he had a knife in order to deter her from making a police report. In Charge 2, besides the grabbing of neck, he also used a pair of scissors to threaten and subdue Y. Both offences were committed within a short period of two days. All these are aggravating factors which I am entitled to take into account (see HKSAR v Choi Kuk Shek, Kendy, CACC 544/2002).

In relation to Charge 1, I have had regard to the authorities of R v Yau Kwok Tung [1987] HKLR 782 and HKSAR v Ting Chiu [2003] 3 HKLRD 378, and HKSAR v Tsang Wai Man, CACC 288/2006. This is not an armed robbery as no weapon was used before or at the time of the robbery, and X was not put in fear about the knife when she handed over the money to the accused. Yet the offence was committed on a vulnerable target in a private premises with some degree of violence used. Threat of a knife was uttered after the offence was completed to prevent the victim from making a police report. In the circumstances, I consider that the appropriate starting point should be one of 4 years. Giving the accused the full one-third discount for his guilty plea, the sentence is reduced to that of 2 years 8 months’ imprisonment, that is, 32 months.

Charge 2 is an armed robbery committed in a one-woman brothel. According to the guidelines laid down by Mo Kwong Sang v R [1981] HKLR 610, an armed robbery should attract a sentence of 5 years’ imprisonment, and aggravating factors should be taken into account to adjust the sentence upwards. In the course of the robbery, the accused pushed Y onto the bed, covered her mouth with his hand, grabbed her neck and pointed a pair of scissors at her. In the circumstances, I consider that the appropriate starting point should be one of 6½ years, that is, 78 months. Giving the accused the full one-third discount for his guilty plea, the sentence is reduced to that of 4 years 4 months’ imprisonment, that is, 52 months.

The offences were separate and distinct offences committed on different days, at different places, and involving different victims. Their sentences should, in principle, run consecutively. Taking into account the totality principle, I order that 16 months of the sentence for Charge 1 to run consecutively to that for Charge 2, making a total of 68 months’ imprisonment, that is, 5 years and 8 months.

Accused, please stand up. For the matters I have mentioned, I sentence you to an imprisonment term of 5 years and 8 months for both charges.