HKSAR v. NAYAB AMIN AND OTHERS

HCCC 115/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 115 OF 2017

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

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COURT:

The 1st, 2nd and 3rd defendants in this case have been convicted after trial on the 1st Count of robbery. The 4th defendant has been convicted after trial on the 2nd Count of handling stolen goods.

The Particulars of Offence in respect of the 1st Count provide that on 18 March 2016, the 1st, 2nd and 3rd defendants, at Man Yue Street, To Kwa Wan, Kowloon, in Hong Kong, together with four other persons unknown, robbed a Mr Nasit of a bag containing a red zip bag, eight packets of a total of about 1,100.59 carets of diamond, a quantity of receipts, a quantity of GIA Reports and some documents.

The Particulars of Offence in respect of the 2nd Count provide that on 11 May 2016, at New World Millennium Hong Kong Hotel, No 72 Mody Road, Tsim Sha Tsui, Kowloon, in Hong Kong, the 4th defendant dishonestly undertook or assisted in the retention, removal, disposal or realisation of stolen goods, namely about 585.86 carets of diamond, the property of Mr Nasit, by or for the benefit of another, or dishonestly arrange to do so, knowing or believing the same to be stolen goods.

The following brief facts have emerged during the trial. Mr Nasit was a businessman operating a diamond wholesale company in Hong Kong. At around 1.35 pm on 18 March 2016, Mr Nasit brought around 1,100.59 carets of diamonds, uninsured and valued at around US$200,000, which were packed in eight paper packets, contained in a red zip bag and placed inside his shoulder bag together some invoices and GIA Reports, for his client’s inspection.

After Mr Nasit had alighted from the minibus at around 2 pm, he walked towards the direction of Ma Tau Wai Road. When he reached Man Yue Street, To Kwa Wan, Kowloon, Hong Kong, his head was suddenly hit by a hard object from behind. Mr Nasit felt dizzy but he grasped his shoulder bag tight when he fell backwards. He was then further assaulted by hard objects on his back and legs. When Mr Nasit was being assaulted, someone snatched his shoulder bag which contained the stolen diamonds.

CCTV in the vicinity captured that one robber hit the head of Mr Nasit with a metal rod-like object from behind when he was walking pass the offence location with his shoulder bag. Six other robbers, most of them also armed with rod-like objects, then also rushed to Mr Nasit from behind.

Mr Nasit received medical treatment at the Queen Elizabeth Hospital after the robbery. He was diagnosed to be suffering from head injury with a 2 centimetres erythema over the right occiput.

Later, Chief Inspector Ho Chi-chung posed as a diamond buyer and a meeting was arranged for him to meet a gang of Pakistani who were looking for buyers for a suspicious batch of diamonds. The meeting took place in the evening on 28 April 2016. During that meeting, the 1st, 2nd and 3rd defendants each made admissions confessing to have committed the robbery in question. Indeed, the 3rd defendant admitted that metal pipe had been used to assault the victim.

A second meeting was setup to be held on 11 May 2016, at Room 1125 of the New World Millennium Hong Kong Hotel. During that meeting, the 1st defendant left the room and returned after around 10 minutes together a rucksack. From the rucksack, the 1st defendant took out a beige cloth bag from which he further took out a red zip bag. He then took out a pile of invoices/receipts (23 pieces in total) printed with the name of Mr Nasit’s company, and seven transparent resealable plastic bags of diamond (total weight of 585.86 carets).

The operation later turned overt and police officers rushed into the room and arrested the 1st and 2nd defendants.

CCTV of the hotel shows that after the 1st defendant had left the room, he first met the 3rd defendant at the entrance of the hotel. The 1st defendant then met the 4th defendant outside the hotel and they entered the ground floor lobby of the hotel together, whereat the 4th defendant then handed the rucksack to the 1st defendant who then returned to the room.

By way of personal background, the 1st defendant is 31 years of age. He was born in Pakistan in 1986. He has received education up to secondary school level in Pakistan. At the time of his arrest, he was unemployed. He is single. He entered Hong Kong illegally from the Mainland on 24 January 2008. He was arrested by the police for illegal remaining on 29 January 2008 and was referred to the Immigration Department for investigation. He was released on recognizance on 28 February 2008, pending removal arrangement, having made an asylum claim in the meantime.

The 1st defendant has three previous convictions, none of which involved violence.

By way of personal background, the 2nd defendant is 34 years of age. He was born in Pakistan in 1982. He also received education up to secondary school level in Pakistan. At the time of his arrest, he was unemployed. The 2nd defendant is single. He was arrested by the police for illegal remaining on 30 January 2008 and was referred to the Immigration Department for investigation. He was released on recognisance on 23 February 2008, pending removal arrangement, having made a torture claim in the meantime.

The 2nd defendant has three previous convictions, one of which is for criminal damage in 2014. His last conviction was recorded in November 2014 for the offence of possession of dangerous drugs, for which he was sentenced to 4 months’ imprisonment, suspended for 3 years. In other words, the present case is committed during the operation period of the said suspended sentence.

By way of personal background, the 3rd defendant is 30 years of age. He was born in Pakistan in 1986. At the time of the arrest in this case, he was unemployed. He is single. He was arrested by the police for illegal remaining on 10 February 2009 and was referred to the Immigration Department for investigation. He was released on recognizance on 28 February 2009, pending removal arrangement, having made a torture claim in the meantime.

The 3rd defendant has a previous conviction for robbery recorded on 10 September 2012. For that offence, the 3rd defendant was sentenced to 5 years and 3 months’ imprisonment.

The 4th defendant is 35 years of age. He was born in Pakistan in 1982. He has received education up to secondary school level in Pakistan. At the time of his arrest, he was unemployed. He is single and he was arrested by the police for illegal remaining on 17 December 2007 and he was referred to the Immigration Department for investigation. He was released on recognizance on 4 January 2008, pending removal arrangement, having made an asylum claim in the meantime.

The 4th defendant has two previous convictions, neither of which involved violence.

I shall deal firstly with the 1st, 2nd and 3rd defendants.

In Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312, the Court of Appeal held that the time was not ripe for a general upward revision of the tariffs laid down by the Mo Kwong Sang guidelines. The guidelines provided the courts with ample powers for dealing with these kinds of robberies. However, “head-bashing” robberies were of sufficient gravity to justify a particular band of guideline sentence. Where the robber struck a deliberate blow to the head with a weapon capable of causing injury to the brain, the sentence, following a contested trial, should not be less than 8 years.

In my view, the present case clearly amounted to a “head-bashing” robbery as described by the Court of Appeal in the Ma Ping Wah case. From the CCTV footage, one can see a vicious attack on a defenceless victim by deliberate blows to his head and body with metal-rod-like objects, which were capable of causing injury to the brain of the victim.

In the circumstances, I adopt an initial starting point of 8 years’ imprisonment on Count 1.

There are three further significant aggravating factors in the present case.

Firstly, the robbery was committed by seven men against a defenceless victim. This is expressly recognised as an aggravating feature in Mo Kwong Sang v R [1981] HKLR 610, at 611G.

Second, this was clearly a well-planned and premeditated robbery aimed at high value goods. The stolen property were fancy diamonds worth some US$200,000. Mr Nasit was obviously not a victim chosen at random. In this regard, the offence is not aggravated merely by the value of the stolen property or the pecuniary loss suffered by the victim, rather it goes to the fact that the defendants obviously aimed for high stakes with the requisite degree of planning [cf. HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137].

For the above two aggravating factors, I would adjust the sentence upwards to 10 years’ imprisonment.

Thirdly, the 1st to 3rd defendants are all non-refoulement claimants. There is a consistent line of authority to the effect that if a non-refoulement claimant, who is permitted to remain in Hong Kong and be at liberty whilst his claim is being determined by the authorities, engages in a serious crime aimed at the very community which has granted him that privilege, and if such crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor capable of aggravating the seriousness of his offence.

In my view, the offences in the present case clearly came within that description: a violent robbery committed brazenly on the streets obviously has the effect of tarnishing Hong Kong’s reputation for order and security.

For this aggravating factor, I would increase the sentence by 12 months to become 11 years’ imprisonment [See: for example, HKSAR v Shah Syed Arif [2016] 4 HKLRD 664 and HKSAR v Mahabul Alam Khan, CACC 116/2016 (Judgement of the Court of Appeal dated 8 September 2017)].

I see no mitigating factor in this case which warrants a downward adjustment to the sentences.

Accordingly, the 1st, 2nd and 3rd defendants are each sentenced to 11 years’ imprisonment.

Regarding the 2nd defendant, the suspended sentence of 4 months is activated in full. I see nothing unjust in activating that suspended sentence, which is to run consecutively to the sentence imposed by this court in this case.

I turn now to the sentence of the 4th defendant.

He has been convicted after trial on one count of handling stolen goods.

As far back as 1994, the Court of Appeal held as follows in The Queen v Hui Kam Ming [1994] 2 HKCLR 247, at page 248 line 42:

“It seems to us that sentences in Hong Kong for handling stolen goods have hitherto been unduly lenient and that the time has come for a revision upwards of the level of sentencing in cases where the defendant has handled the goods that have been taken in a major theft or robbery such as that in the present case. We are satisfied that a starting point for sentence between 5 and 7 years would not be inappropriate in similar cases in the future.”

That was said in the context of a robbery where five men went to a company’s warehouse and removed 418 sets of mobile telephones and 31 uniforms, valued in excess of $2 million.

In my view, bearing in mind the relatively minor role played by the 4th defendant, the appropriate starting point for sentence on Count 2 should be 3 years’ imprisonment.

I would increase the 4th defendant’s sentence by 6 months for the aggravating factor that he committed the offence whilst on recognizance, pending determination of his non-refoulement claim.

For the reasons stated above, the 4th defendant is sentenced to 3 years and 6 months’ imprisonment.