HKSAR v. GURUNG SHAILESH

DCCC 597/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 597 OF 2015

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REASONS FOR SENTENCE

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1.  Gurung Shailesh (Defendant), you have appeared before me this morning and pleaded guilty to two charges of robbery, contrary to section 10 of the Theft Ordinance, Cap 210.

2.  The two robbery charges were indeed committed by you against two young women, both aged 15 (PW1) and aged 16 (PW2), at the same time on 11 April 2015 near Lamppost No AD6511, Yuen Long On Lok Road, New Territories, Hong Kong.

3.  According to the amended summary of facts, which you have admitted before you were convicted, around 8 pm on 11 April 2015, the two young women were walking along On Lok Road when they suddenly felt their necks being held from behind by someone.

4.  In the course of the robbery, you were holding an 8-inches long knife in your right hand and, what was more, you not only displayed the knife, you also held the same at one point to PW2’s neck when grabbing PW1’s handbag.

5.  After the robbery, you altogether took away the two handbags of the two young ladies and the personal belongings contained in the handbags.  In particular, you had taken PW2’s Samsung S3 smartphone worth $3,500 from her right front trousers pocket and also another mobile phone with SIM card valued at HK$1,000 belonging to PW1, contained in her handbag.

6.  During the robbery, you robbed altogether cash of about $636.50 from both ladies, PW1 and PW2.  There were, of course, numerous other personal belongings in their handbags, including the Octopus card and bank card, etc, the details of which can be found in the particulars of the charge of both the first and second charge, and I am not going to repeat here.

7.  After you fled from the scene, PW1 asked the passers-by to alert the police when PW2 gave chase to you and during which time at one point you had turned around and faced both PW2 and one passer-by (PW3) who tried to stop you with your knife in your hand.

8.  Subsequently, you had fled towards the direction of On Ning Road, turned right, and PW3 lost sight of you.

9.  Later, the police arrived after receiving the report and took PW1 to 3 to search in the vicinity.

10.  At around 8.18 pm, you were spotted outside a PARKnSHOP supermarket, which is about 1 kilometre away from the offence location.  The witnesses immediately pointed you out to the police and you were apprehended, arrested and had seized from your person cash of $636.50, the two mobile phones of PW1 and PW2, PW1’s personal Octopus card, and other personal belongings.

11.  Under caution, you had confessed that those mobile phones seized from you did not belong to you and you were willing to lead the police to recover the other stolen properties.

12.  Later, you led the police to a public male toilet in the Yuen Long area where the bags of PW1 and PW2 and the remaining of their personal belongings were recovered from inside a toilet bowl.

13.  In the end, except for the SIM card in PW2’s mobile phone, all the stolen properties during the course of robbery were recovered.

14.  In a subsequent cautioned interview, which was video recorded, you confessed to the police in detail how you took the knife and robbed both PW1 and PW2 because you needed money, and dumped their handbags into the toilet bowl after you took the mobile phones and cash, and you said that you were sorry.

15.  Defendant, you are aged 20 and you were born in Nepal.  You had a clear record in Hong Kong.  You received secondary education in Nepal and you are still single and living together with your parents in a rented room in Yuen Long.

16.  You are represented by Mr Boase, your solicitor.  In mitigation, Mr Boase has firstly submitted to me for consideration a handwritten letter by you.  In this letter, you told me that you committed the present offence because you were under the influence of drugs, in the sense that you were a drug addict and then you were in need of the money, and now, after you were arrested and being detained, you have thought it through and you promised the court that you would stay away from the drugs in the future and asked the court to give you a chance.

17.  Mr Boase then further informed me that you came to Hong Kong in 2010 from Nepal and joined your parents here.  After coming to Hong Kong you had worked firstly as a casual construction site worker, doing odd jobs in a construction site for a period of about a year or so.  Before you were arrested for this offence, you had also worked briefly in the airport in the catering business, earning an income of $9,000 a month.

18.  Mr Boase told me that about two years after you came to Hong Kong, you had started the habit of taking heroin and, because you were unemployed, you had no money to feed your bad habit and therefore you committed foolishly the present offence, using the knife in the course of the robbery frightening the poor young ladies.

19.  Mr Boase, however, stressed to me the fact that you had been very co-operative with the police.  After you were arrested, you voluntarily led the police to recover the stolen properties which would have an effect of minimising the loss to the two victims in this case.

20.  Also, you did not commit the offence with other persons, that you were a lone robber and, despite the fear that had been caused to the young ladies, there were no injuries inflicted on them.

21.  Mr Boase asked the court to perhaps consider other sentencing options, such as the Drug Addiction Treatment Centre (DATC) order or a Training Centre order, so that you can be put back into the right track. 

Sentencing considerations

22.  Robbery is, of course, a very serious offence. The court can never accept economic reasons for committing crimes. 

23.  I am, of course, aware of the fact that you have been very co-operative with the police after you had been arrested and I consider that the fact that you have led the police to find and recover the stolen properties belonging to the two victims is something which I should consider to somehow reduce your sentence.

24.  But that cannot begin to change the nature of the present offence, which involved the two young ladies.  It is a case of an ordinary case of armed robbery, with an 8-inch-long knife being displayed and at one point even held against the neck of PW2. 

25.  According to the famous case of Mo Kwong Sang v R [1981] HKLR 610, the appropriate sentence in an ordinary case of armed robbery, where the accused carried a knife or other dangerous weapon (excluding firearms) which he had displayed to his victim, should be 5 years’ imprisonment.

26.  In this same case, the Court of Appeal had also made it very clear that if other aggravating factor were present, such as the invasion of domestic premises during the night, threats made to victims, ill treatment of victims, multiplicity of offences of a similar kind, or more than one person taking part in the robbery, the sentence should be increased.

27.  In Charge 1, in the normal course of events, I consider that the starting point should be 5 years, which is 60 months.

28.  In Charge 2, I consider that it is more serious, as you have actually held the knife against the neck of PW2.  This is an actual physical threat made to the victim and I consider that a starting point of 5 years and 3 months should be appropriate to reflect the aggravating features in this charge.

29.  Mr Boase had highlighted to me the mitigating factors in this case and urged me to consider perhaps considering other sentencing options, such as DATC order or a Training Centre order. 

30.  The court has, of course, a discretion to depart from the Mo Kwong Sang guideline and to impose other non-custodial sentencing options, such as a Training Centre order.

31.  However, to justify such a departure, there must be very strong exceptional and compelling reasons and that must be likely to be an extremely rare case.

32.  As a matter of general principle, in case of a very serious crime such as the present, in my judgment, a Training Centre order simply does not provide an adequate deterrent effect, both to you personally and also to the others who might follow your footsteps and consider turning to robbery when there are economic problems.

33.  Of course, I consider that in some cases there must be some weight considered attached to the individual justice.

34.  However, in your case, defendant, there is no special circumstances justifying such a departure.  The DATC order suggested by Mr Boase is also simply to address your drug issues or problem and in any events the terms of incarceration or custody would be too low for this type of offence.

35.  On the other hand, if I send you to the Training Centre, I am afraid would be placing too much emphasis on your age and rehabilitation, and in so doing I would be losing sight of the fact that robbery is a serious offence and public interest demands that the sentence of such a serious offence would require certain deterrent effect.

36.  In the end, I consider that the only suitable and appropriate sentence in your case is an immediate custodial sentence.  As I said, the starting point for Charge 1 should be 40 months’ imprisonment whilst the starting point for Charge 2 should be 42 months’ imprisonment. 

37.  These are two robbery offences against two individual young ladies, PW1 and PW2.  In principle, I could have at least imposed a partially consecutive sentence, taking into account that there are two victims.

38.  However, as I said, these two robbery offences virtually took place in the same time and also I should consider somehow lowering your sentence because of your assistance to the police to recover the stolen properties of both victims and therefore minimising their loss.

39.  For this reason, I decided that I would only impose a concurrent sentence in respect of both charges.

40.  The only mitigating factor is your pleading guilty and for which you would be receiving a one-third discount.

41.  In Charge 1 your sentence would be reduced from 60 months to 40 months; in Charge 2 from 63 months to 42 months.  Both charges to be run concurrently.

42.  Defendant, you are therefore sentenced to a total sentence of 42 months’ imprisonment.