HKSAR v. AHMED NISAR

DCCC 759/2018

[2019] HKDC 373

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 759 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “Robbery”.

Facts of the case

2.  At 2:35 am on 7 June 2018, Mr Yee (aged 84) was walking along Wa Fung Sreet.  The defendant, carrying a 4-feet long stick, caught up to him from behind and attempted to talk to him.  As Mr Yee did not know the defendant and could not understand the defendant’s language, he ignored the defendant and went into a rear lane to dump rubbish.  The defendant did not follow Mr Yee but lingered outside the rear lane.

3.  When Mr Yee got out of the rear lane, the defendant was still around. Mr Yee then walked across the street and entered another rear lane.  The defendant followed Mr Yee, and inside the rear lane, he pushed Mr Yee down onto the ground from behind.  He snatched from Mr Yee’s shoulder a recycling bag, which contained Mr Yee’s HKID card, cash of HK$160, a bundle of keys and a mobile phone (valued at HK$300).  The defendant then fled.

4.  As a result of the assault, Mr Yee sustained bruises near his right eye and on his arm, and suffered from tenderness on his right chest.

5.  The whole incident was captured by CCTV cameras.  On 11 June 2018, the defendant was arrested by the police, and was later positively identified by Mr Yee.

Mitigation

6.  The defendant, aged 44, was born in Pakistan.  He is married and is a Form 8 holder in Hong Kong.  Prior to the present case, he had 4 previous criminal records involving 6 charges, one of which was burglary.

7.  In mitigation, it is submitted that the defendant was very drunk at the material time, and committed the offence on the spur of the moment.

8.  It is stressed that the defendant is now extremely sorry for his actions and wishes to apologize to the victim, and he craves leniency on his sentence from the court.

Sentence

9.  Robbery is a serious offence.  The maximum sentence on conviction upon indictment is that of life imprisonment.

10.  Although in this case the defendant was carrying with him a stick, there is no evidence to show that it was ever used, either to attack or threaten the victim, in the course of the robbery.  As such, I consider this case to be one of unarmed robbery.  The starting point for such robbery is generally no more than 4 years’ imprisonment[1].

11.  In determining the appropriate starting point to be taken, I have also considered HKSAR v LAM Ka Hung[2], in which a 57-year-old female victim had her handbag snatched in the early evening as she made her way to her home in the block of flats in which she lived.  She was pushed to the ground where she struggled with the robber, sustaining a minor abrasion to a finger.  A 4 years’ starting point was considered appropriate by the Court of Appeal.

12.  In the present case, on the one hand, an elderly man was robbed in the early hours, and must have suffered from a terrifying experience when he was attacked from behind by the defendant, and pushed to the ground and sustained injuries, albeit relatively minor, as a result.  On the other hand, I note that the defendant acted alone, co-operated with the police after his arrest, and that the value of the property involved cannot be said to be high.  Taking all these into consideration, I am satisfied that the proper starting point is 3 years and 6 months’ imprisonment.

13.  The Court of Appeal has indicated on different occasions that the commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation[3].

14.  I am satisfied that robbery, particularly on senior citizens who are vulnerable to such offence, and committed in the early hours, affects the community and the reputation of Hong Kong.  Accordingly, the starting point is to be aggravated by 3 months to 3 years and 9 months.

15.  The defendant indicated on plea day that he would plead guilty to the charge, and is therefore entitled to a full one-third discount on his sentence. It is thus reduced to 2 years and 6 months.

16.  There being no other mitigating factors, the defendant is sentenced to 2 years and 6 months’ imprisonment.