HKSAR v. ALZUEINAT MOHANMMED ALI MOUSA

HCCC 211/2018

[2018] HKCFI 2600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 211 OF 2018

-----------------

-----------------

------------------------------------------------

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

------------------------------------------------

COURT: Introduction

It is a serious case of unarmed robbery committed by the defendant alone at a diamond trading company situated in a commercial building in Central. The defendant, having already pleaded guilty at the Magistrates’ Court, is committed to this court for sentence. Today, he confirms his guilty plea and his agreement to the Summary of Facts before me.

The Facts

Briefly stated, about a week before the robbery, the defendant sent a message to the company’s proprietor (PW2) pretending to be someone from Dubai who was interested in purchasing diamonds and he told PW2 that he would come to Hong Kong in a few days’ time.

Afterwards, the defendant booked a one-way air ticket and he arrived in Hong Kong from Turkey via Dubai on 26 July 2017 which was the day before the incident. On the following morning, he first made a reconnaissance to the company. PW2 was expecting the defendant, who he thought was a genuine client. Therefore, he opened one of the safes in his office and showed the latter some diamonds from that safe. The defendant stayed in the company for about half an hour. Before leaving, he told PW2 that he would return in the afternoon to make a deal.

In the event, the defendant did return but it was during lunchtime when PW2 was out and when the company was manned by two unsuspecting female employees, PW1 and PW3, who had seen the defendant that morning. Therefore, the defendant was allowed to remain and wait for PW2.

At about 2 pm PW3 went out for lunch, leaving PW1 (the victim named in the charge) alone with the defendant. After having been told by PW1 that the proprietor would be back between 2.30 pm and 3 pm, the defendant approached PW1 purporting to show her his phone. PW1 leaned forward to see over the reception counter, whereupon the defendant punched her left eye with his fist so forcibly that her contact lens fell out. After that, he dragged PW1 out by pulling her hair and made her fall onto the floor. The defendant then subjected PW1 to a series of brutal assault including gripping her neck with both hands, pushing her, kicking her and stepping on her. During her torment, PW1 had twice been pressed by the defendant for the password to the safe and on both occasions she replied that she did not know. The defendant repeatedly kicked PW1 in her face and she eventually passed out.

Then the defendant ransacked the company and stole some cash and three mobile phones. Whilst ransacking, he came by the key to one of the safes in PW2’s office and therefore, he used the key to open the safe and took out some cash and diamonds. However, the opening of the safe triggered the alarm linked to the security company. As a result, PW2 and the police were informed.

Meanwhile, the defendant attempted to leave, but was trapped inside the company, as he was unable to figure out the double door-lock security system. Before the police arrived, he swallowed a number of diamonds with water and hid himself in a corner in the storeroom but was in due course discovered. The police conducted a body search on him and found from his pockets a total of seven diamonds and US$8,607, all of which were properties of the company. The police also found on him three mobile phones, which belonged to the staff members of the company. A thorough search was done inside the company and a further diamond and cash of HK$40,460 was found on the floor of the storeroom and a diamond ring was found on the table in the pantry. PW2 confirmed that the diamonds found on the defendant and on the floor of the storeroom and the diamond ring and cash on the table in the pantry, all of which were previously in the safe.

The defendant was subsequently taken to and remanded in Queen Mary Hospital where he excreted a total of seven diamonds which he had swallowed. According to PW2, the total value of the aforesaid 15 diamonds and one diamond ring which were covered by the charge was US$9,843,911.34.

As regards PW1, she was in a semi‑conscious state when the police found her. She was sent to Queen Mary for emergency treatment where she was found to have sustained multiple injuries and contusions, many of which were it the area of her scalp, eyes, face and neck. It was by providence that she did not suffer any skull bone or facial fracture. She was hospitalised until she was discharged on 1 August 2017. With the consent of counsel, I have seen the photos of her injuries and there can be no doubt that the assault on her must have been ruthless and violent.

The Defendant’s Antecedent

The defendant was born in Jordan and was aged 22 at the time of the offence. He has a clear record in Hong Kong. He claims to be a businessman in Jordan. He is married with no children but has separated from his wife in the end of 2016. He is said to have been suffering from delusion and skin cancers since 2003 and 2015 respectively. He also claims that he has obsessive comprehensive disorder.

As regards the assertion in the antecedents statement that the defendant had skin cancer, Mr Tracy clarifies that the defendant was, in fact, injured in a fire in Jordan which left him with serious scars on his hands, arms, back and legs.

As regards the assertion in the antecedents statement that the defendant had obsessive comprehensive disorder, Mr Tracy disagrees about that. He refers to and adopts the two psychiatric reports from Siu Lam Psychiatric Centre ordered by the committal magistrate in late May 2018, where it was observed that the defendant’s mood was euthymic, that his speech was relevant and coherent and that no definite psychotic symptoms were elicited.

I note also that it is the common opinion of the two psychiatrists that the defendant is not suffering from any active mental illness or psychiatric disorder, and that no psychiatric treatment is required. In view of the contents of the psychiatric reports which are recent, I do not consider it necessary to call for any updated reports for the defendant and Mr Tracy does not suggest the otherwise.

Sentence

In the Summary of Facts prepared by the prosecution, at paragraph 24(b) it is said that apart from the 15 diamonds and the diamond ring recovered, there were a further three diamonds and three diamond rings, valued at US$3,379,948 remain missing. A sweep was carried out by the police in PW2’s office and the alleged six missing items could not be found. The defendant takes issue with this subparagraph.

I am fully alive to the sentencing principle as laid down in HKSAR v Lai Kam Tong & Anor [2005] 1 HKC 232, that the amount of the stolen properties and the impact of the resulting financial loss to the victim is a relevant factor to be taken into account in sentence.

However, in the present case, I do not think that it is necessary to resolve the aforesaid dispute by way of a Newton Hearing. The present dispute is not about how the robbery was committed or which of the properties stated in the charge was stolen by the defendant. The defendant has simply not been charged with any offence covering those six allegedly missing items.

In fact, in my view, it would not be right for this court to take the alleged missing items into consideration when sentencing the defendant. As to this, both Ms Chan and Mr Tracy agree.

I bear in mind the judgment of the Court of Appeal in HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378, that in a case of unarmed robbery, the starting point should be lower than the normal sentence for an armed robbery of the kind envisaged in Mo Kwong Sang v R [1981] HKLR 610.

HKSAR v Ting Chiu & Anor was about a robbery by a gang of four against two hikers. Apart from the number of robbers involved, there was no other aggravating feature. On appeal, the Court of Appeal said that the starting point, before any discount for plea, should be one of 4 years’ imprisonment. Therefore, if the robbery were a solo act without any aggravating features, then one would expect the starting point to be less than 4 years.

In the present case, whilst the robbery was committed by the defendant alone, there exists a number of aggravating factors which make it a much more serious offence than a run-of-the-mill Street robbery without the use of a weapon:

(1) It is Mr Tracy’s admission in mitigation that the crime was not a pre‑planned one. Upon inquiry by the court, Mr Tracy indicates that the defendant does not wish to give evidence on this point. With respect, I am unable to accept this submission. From a plain reading of the Summary of Facts agreed by the defendant, it is obvious that there was a degree of planning in the robbery, which was over and above that of a common street robbery, in that the defendant has sent a deceptive message to PW2 several days before and that he also reconnoitred the company before committing the robbery;

(2) the defendant came to Hong Kong as a visitor with the purpose of committing the robbery in question: HKSAR v Obiagwu Oluchukwu Christian [2011] 1 HKC 453;

(3) during the reconnaissance in the morning, the defendant told PW2 that he represented a client from Dubai who would like to spend around US$700,000 to 800,000 for diamond investment. From this, I am satisfied that the only reasonable inference to be drawn is that the defendant aimed not just at any diamonds, but diamonds of considerable value: HKSAR v Cheng Xiangrong [2017] 5 HKLRD 219 at paragraph 26 of that judgment;

(4) there was an invasion of a private premises and such term includes gaining entry by false pretences: Secretary for Justice v Tseung Mang Ka [2001] 2 HKLRD 115;

(5) the defendant targeted a vulnerable business, akin to a bank or jewellery shop, which would be known or expected to have large amounts of cash and valuables on the premises: HKSAR v Obiagwu, Oluchukwu Christian; and also R v Yu Tai Wing [1995] 1 HKC 837;

(6) I am told by Ms Chan that the assault does not cause any permanent disability, disfigurement or psychological damage to PW1. Nevertheless, there is no denying that there was a ruthless and brutal assault of the victim and many of the kicks were aimed at her face, as a result of which she sustained serious injuries as shown in the photos. Moreover, attacking a lone female was cowardly and this makes the aggravating factor even more serious in the context; and

(7) the fact that the defendant swallowed diamonds prior to the arrival of the police when he found himself unable to flee from the scene shows an exceptional degree of persistence and a desperate attempt to benefit himself, and thus causing losses to the company.

My attention has been drawn to the sentenced passed by Zervos J (as his Lordship then was) in HKSAR v Mishchenko Oleg (HCCC 180/2017) in which an imprisonment term of 8 years was taken as the starting point for an armed robbery with the use of a knife at an exchange shop at the airport by a visitor from Russia. I note that many of the aggravating factors as listed at paragraph 12 of that judgment are also present here. That case, in my humble view, provides a useful comparable to the present case. However, I bear in mind that that was an armed robbery. I also bear in mind, on the other hand, that there are serious aggravating factors which were not present in that case. For example, the higher degree of planning shown in the present case and the serious injuries sustained by the victim.

Looking at the matter in the round, I am of the view that an appropriate starting point for the offence, after taking into account all the aggravating features is one of 7½ years’ imprisonment.

As regards mitigation, because of his timely plea, he is to be given a one-third discount from the starting point, which reduces his imprisonment term to 5 years.

Apart from that, I can see nothing in the defendant’s personal background and circumstances which may further reduce his sentence. Regarding the defendant’s medical condition, I trust that the Correctional Services will provide him with adequate medical care.

Based on the above, the defendant is sentenced to 5 years’ imprisonment.