HKSAR v. AZAD MOHAMMAD FARHAN

DCCC1147/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1147 OF 2011

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Reasons for Sentence

1.  The defendant faced one charge of robbery. He was found not guilty of robbery after trial but guilty of the lesser offence of theft. The defendant had indicated at the time of plea that he would plead guilty to a charge of theft.

Summary of Facts

2.  PW1 is a sex worker operating from a room in Flat 7 of Alhambra Building. On the material night she was waiting along the corridors of the building when the defendant and his friend approached her. PW1 agreed to provide sexual service to the defendant and his friend for $300 each.

3.  Inside flat 7, the defendant and his friend asked to have sex together with PW1 at the same time. PW1 refused, the defendant became angry and hit PW1 on her jaw and then again on her cheek causing swelling and redness. PW1 ran out of her room to escape. While PW1 ran, the defendant snatched the black bag that belonged to PW1 and which PW1 was holding. PW1 ran into her friend’s room next door and locked themselves in. The defendant and his friend ran down the stairs, was confronted by the building’s caretaker at the ground floor but managed to run away, dropping PW1’s bag while getting away.

4.  The defendant in his evidence said that he never applied any violence on PW1. He admits to PW1 running out of the room but that PW1 had left her bag behind in the room and the defendant only took it to get back his money. It was on that factual basis that the defendant considered what he did amounted to theft and entered his plea to the lesser offence of theft.

5.  The defendant’s version of fact was rejected by the court.

Previous convictions

6.  The defendant has one previous conviction for possession of dangerous drugs in September 2009 when he was fined $1,000.

Mitigation

7.  The defendant is 25 years old. He was born in India and came to Hong Kong in February 2008. He is single and was living alone in Hong Kong. He was unemployed at the time of his arrest. He had applied for refugee status and been staying in Hong Kong as such.

8.  The injury to PW1 was at the lower end of the scale, skin was not broken, just swelling and redness. No weapons used or brandished and value of stolen property was not high. No evidence that the defendant and his friend went there with the intention to steal. It was a spur of the moment theft. Mr. Polson however agreed that it was theft by snatching. Must be given some credit for his offer to plead guilty to theft.

Sentence

9.  The maximum sentence for theft is that of 10 years’ imprisonment.

10.  Although the defendant was not alone at the time of the theft, there is no evidence to suggest that the other male was in the theft together. The defendant should therefore be treated as committing the theft alone.

11.  Snatching cases attract a usual sentence of between 12-15 months’ imprisonment. Although it was not a case of robbery, there was violence involved in the incident. The theft took place at a time, in a place and in a manner that caused the victim great distress and to seriously fear for her personal safety.

12.  I find that under all the circumstances of the case, an appropriate starting point is that of 18 months’ imprisonment.

13.  Although the defendant indicated that he would plead guilty to the charge of theft at the outset, the eventual conviction is based on the facts as proved by the prosecution which is materially and significantly different to those put forward by the defendant in his evidence and which I have rejected as untrue. For that reason, I find that the defendant should not be given the full one third discount for his guilty plea.

14.  I will reduce his sentence by 2 months, which is slightly more than a 10% discount, and sentence him to 16 months’ imprisonment.