HKSAR v. ASIM HAFIZ TAHIR MAHMOOD

CACC 283/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 283 OF 2016

(ON APPEAL FROM DCCC NO 352 OF 2016)

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J U D G M E N T

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1.  By a notice of application for leave to appeal (Form XI) dated 2 September 2016, the applicant seeks leave to appeal against a sentence of 3 years and 8 months’ imprisonment passed upon him in the District Court by HH Judge Dufton (“the judge”) on 18 August 2016 in respect of his plea of guilty to a single charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

The facts

2.  The applicant entered a “7-Eleven” convenience store on Tai Po Road, Sham Shui Po at around 6:15 pm on 10 January 2016, went behind the counter and pointed a six-inch folding knife at the safe under the counter demanding a staff member of the store, Mr Chak, to open it.

3.  Mr Chak, who did not have the key to the safe, but fearing for his safety, opened the cash till instead.  The applicant grabbed HK$4,490 in cash from the till and left the shop.  At the same time, he also took some stamps, which had been placed on top of the counter.  However, on his way out of the shop, he dropped the stamps at the entrance.

4.  Ms Chu, a colleague of Mr Chak, having become aware that the applicant had gone behind the counter with a knife, entered the store area and called the police.  CCTV footage from a camera inside the shop captured the course of the robbery and clearly showed images of the applicant and the clothes he was wearing.

5.  The applicant was located by police on 26 February 2016 and subsequently arrested.  Under caution, the applicant denied committing the offence.  At the time of his arrest, he was wearing a dark-coloured jacket similar to the one he was seen wearing during the robbery.  On the following day, during a search of the applicant’s home, a T-shirt with a distinctive pattern on its front, similar to the one worn by the applicant during the robbery, was seized.

6.  The applicant was subsequently positively identified at an identification parade by Mr Chak and Ms Chu as the man who had robbed the “7-Eleven” shop on 10 January 2016.

7.  When he pleaded guilty, the applicant admitted that he had robbed the shop in question with a knife and stolen HK$4,490 in cash.

Reasons for sentence

8.  It was submitted on the applicant’s behalf that he was a Pakistani asylum seeker aged 44, who had come to Hong Kong illegally in 2007; he had both a drink and a drug problem; he had been drinking whisky at the time of the robbery, although the applicant knew what he was doing at the time.  The judge observed from the CCTV footage that the applicant was clearly looking for the right opportunity to commit the robbery in the shop.

9.  The judge noted that, in accordance with the guidelines in R v Mo Kwong Sang [1981] HKLR 610, the appropriate starting point for an “ordinary” case of armed robbery, where a knife or other dangerous weapon was carried and displayed, was 5 years’ imprisonment.

10.  Having viewed the CCTV footage, the judge was satisfied that the instant robbery involved no physical violence.  However, the robbery did involve an invasion of business premises.  He was of the view that the staff members of convenience stores, particularly those working alone in the early hours, were vulnerable to this type of robbery and required protection.  In the present case, however, the robbery had been committed in the early evening, when there was more than one member of staff working.

11.  The judge was satisfied that robberies of convenience stores and their staff members were offences which affected both the community and the reputation of Hong Kong.  In such circumstances, he considered that the applicant’s status as a torture claimant aggravated the offence: see HKSAR v Sandagdorj Altankhuyag & another [2014] 1 HKC 206; HKSAR v Anees Khiyam (unrep., CACC 326/2013, 11 December 2013);and HKSAR v Shah Syed Arif [2016] 4 HKLRD 664.

12.  Accordingly, the judge enhanced the starting point by 6 months to 5 years and 6 months’ imprisonment.  After reducing the resulting notional sentence after trial by one-third for plea, the applicant was sentenced to 3 years and 8 months’ imprisonment.

Grounds of appeal

13.  In his Form XI, the applicant stated that he accepted that imprisonment was appropriate but relied on various unspecified humanitarian grounds for a reduction in sentence.

14.  By letter filed on 24 November 2016, the applicant questioned both the starting point adopted in his case and the reasons for sentencing a torture claimant more heavily than other offenders.

Respondent’s submissions

15.  Mr Andy Lo, in his written submissions on behalf of the respondent, submitted that there was no sufficient basis to justify a reduction of sentence on humanitarian grounds. Furthermore, as the judge fully recognised, it has been firmly established by the appellate Courts that those who are privileged to remain at liberty in Hong Kong whilst their various claims for asylum are being determined by the authorities should behave themselves and abstain from committing crimes that affect the very community which has granted them that privilege.  If such a crime also has the effect of tarnishing Hong Kong’s reputation for order and security, which are the very qualities an applicant is seeking to secure for himself, then his status is capable of aggravating his offence.

Consideration

16.  The judge’s sentence was in complete accordance with relevant authority.  The starting point of 5 years’ imprisonment for the robbery of a convenience store with a knife, which is openly carried and displayed, is in accordance with guidelines established more than 30 years ago by the Court of Appeal in R v Mo Kwong Sang (supra).  The enhancement of that starting point by virtue of the applicant’s status as a torture claimant, given the nature of the crime and its effect on the people of Hong Kong as well as on the reputation of this City, is also in accordance with established sentencing principle: see, for example, HKSAR v Shah Syed Arif (supra).

17.  Comparisons with other sentences passed at first instance on different facts in different circumstances provide no justification for interfering with an otherwise proper sentence passed in accordance with established sentencing principle.

18.  As for the applicant’s suggested extenuating personal circumstances, they cannot provide any reason to reduce an otherwise appropriate sentence for a crime as serious as robbery.

19.  I can see no reasonably arguable grounds of appeal against sentence.  Accordingly, the application is refused.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal.  However, he is also warned of the consequences of renewing his application, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.