HKSAR v. SINGH JAGJIT AND ANOTHER

DCCC 649/2018

[2019] HKDC 1065

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 649 OF 2018

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REASONS FOR SENTENCE

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1.  Both defendants pleaded guilty to a joint charge of robbery.

Facts of the Case

2.  PW1 and PW2 both worked at the 7-Eleven Convenience Store on Ground Floor, No. 1D Tak Hing Street, Yau Ma Tei, Kowloon, Hong Kong (“the Store”). 

3.  On 3 April 2018 at around 5:10 a.m., D1 and D2 entered the Store separately and left after buying different items. Around 5 minutes later, D1 and D2 returned to the Store together.  D2 pointed a 15‑cm long cutter (grey in colour) at PW1 and asked her to surrender all money at once (“拎晒啲錢出黎，快快快”).  PW1 complied and took approximately HK$2,500 from the cashier to D2. 

4.  At the same time, PW2 headed to the storeroom intending to report the case.  D1 pointed a 8-cm long knife (silver in colour) at her and asked her to stop.  PW2 complied.  Case was reported shortly after D1 and D2 fled.  PW1 and PW2 were not injured. 

5.  CCTV of the Store captured D2 pointing a knife towards PW1.

6.  D1 was arrested later on the same day at home.  Police retrieved the following at D1’s place of residence:-

a) a black cap, one black “DKNY” long sleeve shirt and one black “Giordano” long sleeve shirt;

b) a pair of white “Adidas” trousers, a pair of black “Nike” sports shoes and a pair of black “Puma” sports shoes; and

c) one black scarf and one white scarf.

7.  Under caution, D1 admitted in Punti that:-

a) “Ah Paul” asked him to go rob a “7-Eleven” store together, and he acted as look-out at the material time. He also provided the mobile number of “Ah Paul”;

b) The black cap, the black “DKNY” long sleeve shirt and white “Adidas” trousers were worn by him;

c) “Ah Paul” wore the black “Giordano” long sleeve shirt during the robbery.

d) The sports shoes seized were the ones worn by him and “Ah Paul” during the robbery;

e) The black scarf seized was the one used by him while the white one was used by “Ah Paul” during the robbery.

8.  On 26 April 2018, D2 was arrested at his place of residence.  The following items were seized during the house search:-

a) a white sleeves T-shirt with a “S” logo, a black long sleeve shirt; and

b) a pair of white “Nike” sports shoes and a pair of black sports shoes.

9.  At the identification parade conducted on 10 May 2018, PW1 positively identified D2 to be the one robbing her in the Store on the material day. 

10.  CCTV footages from D1’s residential building and from the vicinity of the Store captured that:-

a) both defendants met up at around 2:10 a.m. on the material day at ground floor lift lobby and went to 3^rd floor (where D1’s home is located);

b) they left D1’s residence and took the lift together at around 4:52 a.m. (with appearance and clothing same as those seized);

c) they were in the vicinity of the Store at around 5:02 a.m. (with appearance and clothing same as those seized); and

d) they returned to D1’s residence at around 6:16 a.m. (with appearance and clothing same as those seized).

11.  At the material time, both defendants robbed PW1. 

Criminal Record

12.  D1 has one criminal conviction record in 2006 for an offence of possession of a dangerous drug.  A fine was imposed on him. 

13.  D2 had been sentenced by the court between 2003 and 2018 on 30 occasions involving a total of 41 offences. And 17 out of which related to dishonesty. 

Mitigation

14.  D1, aged 40, was born in Hong Kong and is a permanent resident here.  He also holds a British passport.  He received education in both Hong Kong and India. 

15.  He has two younger siblings.  His parents are in their early 60s.  His father has retired and used to run a trading business and a security company.  His father has a heart condition and now lives in India.  His mother lives in the United States with his younger sister who is expecting her second baby.  His younger brother lives and works in Hong Kong and got married in February this year.  D1 was unable to attend his younger brother’s wedding as he had been in custody for the present case. D1’s family is financially stable and owns commercial and residential properties both here and in India. 

16.  He had two marriages.  The former one ended in divorce in 2001.  After the failure of his first marriage, he started to abuse drugs.  He got married again in 2005.  It was a successful marriage until his wife filed a divorce petition after his arrest for the present offence.  The decree nisi was granted in April 2019. 

17.  He had a curry restaurant in 2000.  After the first divorce, he could not manage the restaurant anymore and closed it down.  He had worked at his father’s security company and trading company previously.  Before becoming a private driver in early 2018, he had been unemployed for a while. 

18.  In the past, he had undergone drug rehabilitation and treatment programs but they did not curb his drug-taking habit.  During his detention at Lai Chi Kok Reception Centre, he had the opportunity to reflect on his drug problem and how it led to his commission of the present offence.  He undertakes to stay away from drugs and D2 after his release from prison.  He plans to move to live in India with his father. 

19.  He committed the present offence because of his drug problem and under the influence of D2.  His participation in the present offence was entirely out of his character.  He fully co‑operated with the police from the outset. 

20.  Mr Young has referred me to a number of authorities[1] and the mitigation letters written by D1, his father and Mr Daljit Singh, the President of the Sikh Temple.  Both his father and Mr Singh in their letters expressed their support for D1 to start anew.  D1’s family members and members of the Sikh Temple also attended court to give him support.

21.  D1 in his letters expressed his extreme remorse and determination to be a law abiding citizen in the future. He felt ashamed of himself for what he had done and offered his apologies to the staff members of the Store. 

22.  D2, aged 35, is single.  Before the present remand, he lived with his girlfriend and worked as a bartender earning a monthly income of about HK$15,000.  He was born in Hong Kong and completed secondary education. 

23.  He is truly remorseful.  He plans to marry his girlfriend and start anew upon his release from prison.  While he was remanded in custody for the present case, he provided information to the police to assist in solving other criminal activities.  However, the person implicated in the information had already been arrested by the police beforehand.  Therefore, his information was not ultimately utilized by the police. 

24.  Mr Yip has also referred me to a number of authorities[2] and the mitigation letters written by D2 and a Mr Wong for D2. 

25.  As revealed in Mr Wong’s letter, he and D2 met each other while they were inmates in prison.  He was grateful to D2 for taking time to teach him English without asking for any reward.  He asked the court to deal with D2 leniently. 

26.  D2 in his letter expressed his remorse and determination to turn a new leaf.  During his remand in custody, he was taking things positively, such as helping out other inmates to improve their command of English.  He also mentioned that, before the present offence, he was traumatized by the tragic loss of his ex-girlfriend who had jumped off a building.  Since then, he often felt isolated, melancholy and experienced anxiety.  He committed the present offence out of foolishness.

27.  Mr Yip accepts that the strongest mitigating factor is D2’s guilty plea. 

28.  Both defendants are willing to make compensation to the victim. However, as confirmed by the Prosecution, the offer of compensation was rejected by the Store.  Instead, D1, through his younger brother, made a donation of HK$2,500 to the Beat Drugs Fund Association to support anti-drug programs to help others. 

29.  Mr Young and Mr Yip accept that the usual starting point is 5 years’ imprisonment.  However, they urge me to consider adopting a lower starting point.

30.  On 18 June 2019, I granted D2’s application to adjourn the sentence to today in order to give him more time to prepare further mitigation.  Further submissions made by Mr Yip today, both in writing and orally, show that the said application stemmed from D2’s concern over D1’s mitigation alleging that D2 was the principal offender and he committed the present offence under D2’s influence as well as D2’s expectation that more mitigation letters would be available during the adjournment.  During the adjournment, D2 had sufficient opportunity to have a more mature reflection on the said allegations and the mitigation put forward on his behalf on the last occasion.  D2 now has no further concern over the said allegations and no further submissions to make in this regard.  D2 also fully adopts the earlier submissions on mitigation. 

31.  Various efforts were made by D2 during the adjournment to obtain further mitigation letters. 

32.  Mitigation letters written by his girlfriend, Rev. Dr Tobias Brandner, Prison Chaplain for the Hong Kong Christian Kun Sun Association and Associate Professor of Chinese University of Hong Kong, and Deacon Peter Wong of Catholic Diocese of Hong Kong respectively have been submitted by Mr Yip today for my consideration. As revealed in the letters, they are all very supportive to D2 and confident of D2’s determination to start anew.  His girlfriend also expresses her love and concern for D2 and her intention to stay with D2. 

Sentence

33.  I have carefully considered everything said by Mr Young and Mr Yip in mitigation on behalf of both defendants respectively.

34.  In Mo Kwong Sang v R [1981] HKLR 610, the Court of Appeal held that, after trial, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be 5 years.  If the robbery involved an invasion of private premises, which included domestic and business premises and the common parts of premises such as lifts and staircases, a sentence of 6 years would be appropriate.  These guidelines should be adjusted to reflect the aggravating factors and in accordance with the particular facts of the case and/or the accused’s age record and other personal circumstances. 

35.  In HKSAR v Kwok Cheuk Man [2005] 3 HKLRD 698, the Court of Appeal took the view that places such as petrol stations and convenience stores that were open round‑the‑clock were susceptible to robbery and had to be protected.  A deterrent sentence was warranted for those who robbed these places. 

36.  The present offence took place at early hours in the morning.  The Store was undoubtedly business premises.  At the time of the offence, a knife and a cutter were used by D1 and D2 respectively to point at the two female staff.  I am satisfied that both the knife and the cutter were dangerous weapons. 

37.  Although it was not apparent from the Summary of Facts as to how the two female staff felt when being threatened with the knife and cutter respectively, I am of the view that under such threats the two female staff must have been put in fear.  The threat and fear experienced by the two female staff, the invasion of business premises, and the fact that two robbers were involved are clearly aggravating factors. 

38.  Both defendants went into the Store separately shortly before the offence took place.  In my view, this fact clearly showed that they did check out the Store and the offence was a premeditated one. 

39.  The sentencing cases involving robbery offences referred by the defence were, in my view, less serious than the facts of the present case, as the defendants in those cases were acting alone. 

40.  On the facts of the present case, I find that a starting point of 5 years should be enhanced to reflect the aforesaid aggravating factors.

41.  However, I note that no actual violence was used on both female staff and the duration of the present offence was less that one minute.  No one was injured and no property was damaged.  I also accept the submission that the present offence was not well-planned.  Both defendants have no similar conviction records. 

42.  Therefore, I am prepared to deal with them leniently and adopt a starting point of 5 years without making any enhancement for the aforesaid aggravating factors. 

43.  As to D1’s mitigation on his role being secondary, I am of the view that both defendants share an equal culpability.  Without D1 acting as a lookout to stop one of the two female staff, the full part of the offence could not be perpetrated. 

44.  Both defendants have criminal record.  D1’s record is a spent one.  Therefore, I treat him as if he has no criminal record.  I am also prepared to accept that his commission of the offence was out of character.  He is remorseful and pleaded guilty to the charge.  He fully co-operated with the police including providing D2’s information to assist the police.  For these reasons, I am prepared to deal with him leniently and reduce the starting point by 9 months to 4 years and 3 months. 

45.  Although D2 has a fairly lengthy criminal record, I note that most of them related to possession of drugs and theft.  He has no similar record.  I will not consider him a repeated offender.  Further taking into account his remorse, guilty plea, the tragic loss of his ex-girlfriend together with the mental and emotional pain suffered by him around the time of the offence, his assistance to the police albeit not utilized and his determination to start anew with his girlfriend, I am prepared to take a lenient view on him and reduce the starting point by 4½ months to 4 years and 7½ months. 

46.  For each defendant, apart from his guilty plea, I do not see any other mitigating factors justifying any further deductions.  I therefore sentence D1 to 2 years and 10 months’ imprisonment and D2 to 3 years and 1 month’s imprisonment.