HKSAR v. HAYAT SIKANDAR

DCCC 348/2023

[2024] HKDC 199

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 348 OF 2023

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REASONS FOR SENTENCE

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The Charge

1.  The defendant pleaded guilty to one charge of robbery, contrary to section 10(1)  and (2)  of the Theft Ordinance.

The Facts

2.  Mr. CHAN ("PW1")  and Ms. WU ("WU")  were staff members of a jewellery shop known as "Tai Fook Jewellery" at Shop No. A3, Ground Floor, No. 10 Fook Hong Street, Yuen Long, New Territories (“the Shop").

3.  At about 1308 hours on 25 August 2022, the defendant entered the Shop. He took out a watermelon knife, showed it to PW1 and dropped a transparent knife cover onto the floor. PW1 went backward. The defendant gestured for PW1 to pause and keep quiet. He then indicated to PW1 that he wanted the gold jewellery in the showcase nearest to the entrance of the Shop. In response, PW1 took out three trays of gold jewellery from the showcase. The defendant then swept the gold jewellery into the plastic bag. When he was about to leave, he showed the watermelon knife to PW1 and WU, and stated "money" twice. PW1 and WU gestured to him that they were unable to take out any money. The defendant left afterwards and PW1 called the police.

4.  CCTV footage of the Shop captured the incident.

5.  The stolen gold jewellery consisted of 48 bangles, 25 necklaces and one pendant (“the Gold Jewellery”), with the total value of HK$432,518.

6.  CCTV at various location captured images of the defendant and eventually led the Police in locating the defendant at his residence. At about 1800 hours, the defendant was arrested for "burglary".

7.  At about 2358 hours, the defendant cried at the police station when fingerprints were being taken from him. Upon enquiry by the police, the defendant stated that he made a mistake. Under caution, he repeated that he made a mistake and stated that he could lead the police to take back the Gold Jewellery.

8.  At about 0028 hours on 26 August 2022, the defendant confirmed with the police the place in Kam Tin where the Gold Jewellery were hidden.

9.  In a video-recorded interview,  the defendant stated that, he robbed the Shop on 25 August 2022; took out a knife in front of the two staff members of the Shop; he told them to put the Gold Jewellery into a plastic bag; he asked them for money but they said they did not have any; he went to Kam Tin to hide the Gold Jewellery; he bought the watermelon knife about 2 to 3 days ago; and he took a photo of the Shop 2 days ago for the purpose of the robbery.

10.  At the material time, the defendant was a Form 8 recognizance holder.

Mitigation

11.  Mr. Laskey, who represented the defendant, told this court that the defendant is a 34 years old single man. He came to Hong Kong in the year 2019. He is a Form 8 recognizance holder. He has a clear record.

12.  Mr. Laskey urged this court to consider that during the course of the robbery, no threat or physical harm was made or inflicted by the defendant. There was no other person involved in the robbery apart from the defendant.

13.  It was further submitted by the defence that the defendant had demonstrated exceptional remorse in volunteering to take the police to recover the Gold Jewellery. The defence prayed-in-aid the authorities of HKSAR v. Ngo Van Nam [2016] 5 HKLRD 1, Secretary for Justice v. Hui Siu Man [1999] 2 HKLRD 236 and HKSAR v. Wen Zelang [2006] 4 HKLRD 460 and urged the court to consider giving the defendant an additional discount on top of the one-third discount

Sentence

14.  I take into account that the present armed robbery was committed by the defendant alone during which a knife was shown with no physical violence involved or injury caused. I take 5 years (60 months)’ imprisonment as the starting point.

15.  I accept the defence’s submissions and am prepared to give an additional sentencing discount (of 40%)  to the defendant to reflect his volunteering in his revelation to the police of the hiding place of the Gold Jewellery. It is unlikely that such recovery would have been made possible but for the defendant.

16.  After applying the said additional sentencing discount, the defendant’s sentence will be reduced to 36 months.

17.  The defendant is a Form 8 recognizance holder.

18.  Offences committed by refugees or torture claimants are capable of being viewed as aggravating factor where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security {HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206 and HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014}.

19.  Armed robbery falls into that very category.

20.  I therefore enhance the sentence by 3 months.

21.  The defendant’s sentence is therefore one of 39 months’ imprisonment.