HKSAR v. SENG' ENGE BARAKAEL LUTHER

DCCC 164/2024

[2025] HKDC 1284

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 164 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant SENG’ENGE Barakael Luther (D) pleaded guilty before me to 2 Charges. Charge 1 “Robbery”, contrary to section 10 of the Theft Ordinance, Cap. 210. Particulars of Offence stated that on 30 September 2023, at Pottinger Street, Central, he, together with other persons unknown, robbed Mr KANG Jun (KANG) of one watch.Charge 2 “Resisting a police officer in the execution of his duty”, contrary to section 63 of the Police Force Ordinance, Cap. 232. Particulars of offence stated that on the same day, in the vicinity of Lyndhurst Terrace and Cochrane Street, Central, he resisted Sergeant 3269, a police officer acting in the execution of his duty.

Facts

2. The facts of the case as admitted by D reveal that at about 3 am on 30 September 2023, KANG, a South Korean, had been drinking with friends in a bar in Lan Kwai Fong area. Shortly before 4:10 am he was feeling intoxicated and left the bar by himself as he wanted to look for a taxi to take him home. He was wearing a silver Rolex Submariner wrist watch (the watch) valued at about HK$88,000 on his left hand.

3. Shortly afterwards when walking along Pottinger Street, KANG tripped and fell to the ground. An unknown black female with Afro hairstyle approached to help him up. At almost the same time, D approached KANG from behind, grabbed KANG’s left hand and attempted to remove the watch from KANG’s wrist. KANG tried to swing away D’s hands but was unable to do so. There was a struggle between D and KANG when the latter tried to stop D from removing his watch. About a minute later, 2 more black males joined D. They surrounded and tailed KANG, moving slowly down Pottinger Street towards Lyndhurst Terrace.

4. When the group reached the junction with Lok Hing Lane D succeeded in removing the watch from KANG’s wrist. D handed it to one of the 2 black males mentioned above. D, the black female and the other 2 black males then dispersed in different directions.

5. The above incident was witnessed by a group of plainclothes police officers who were on duty nearby. Sergeant 3269 was the first officer to reach the scene. He chased after D along Lyndhurst Terrace towards Cochrane Street, shouting in English “Police” and “Stop”. D ignored the warning and continued to run away.

6. D was finally caught up by the Sergeant at outside 37 Cochrane Street. When the Sergeant tried to apprehend D, he revealed his identity and continued to warn D in English not to resist, but D kept struggling, using strong force to push away the Sergeant to try to get free. Finally, another officer of the team joined in and subdued D. D said at one stage in English that he had no idea what had happened.

7. During a subsequent video recorded interview in the police station under caution, D denied robbing KANG and said he tried to run away as he did not know he was being chased after by the police.

8. D now admits he participated in a joint enterprise with the other 2 unknown African males and another female to rob KANG of his watch, and that he had used force to struggle and push away the officer trying to arrest him, knowing the latter was a police officer.

Defendant’s Backgrounds and Mitigation

9. D is 33 years old, born in Tanzania on 9 August 1992. He arrived in Hong Kong as a visitor from Guangzhou on 9 September 2023 and was allowed to stay for 3 months. At the time of the offences he was residing in Chung King Mansion in Tsim Sha Tsui. He had no criminal record in Hong Kong.

10. Mr Hingorani representing D submitted in mitigation that D was the third among 5 siblings in the family. His father passed away in 2006. His mother, living in Tanzania, is of poor health, suffering from chronic illness and relies heavily on D for medication, care and emotional support, as the other sibling were, for various reasons, unable to do so. D was the only sibling who had attained tertiary education, but yet to secure a formal employment. He came to Hong Kong following advice from a close friend of job opportunities here.

11. Mr Hingorani submitted that D suffered severe adversity from an early age. The offences stemmed from overwhelming personal and economic hardship, and an urgent need to protect and support his fragile family, rather than criminal inclination. D has no prior criminal record.

12. On the issue of proper starting point, Mr Hingorani submitted that the appropriate starting point for this case should be “something less than 4 years”, citing The Queen v Yau Kwok Tung[1], HKSAR v Ting Chiu & Another[2], HKSAR v Lam Ka Hung[3], HKSAR v Chan Sin Leung[4], and HKSAR v Ku Kwok Wai[5] in support.

13. As to discount for plea, Mr Hingorani submitted that D had spent a considerable time in custody and was acting on legal advice when he maintained his not guilty pleas, and that the case has not reached the trial proper. He submitted that D ought to be given 25% discount, citing a passage in Ting Chiu in support.

Sentence

14. The maximum sentence for Charge 1 is life imprisonment and 6 months imprisonment and a fine of $5,000 for Charge 2.

15. In Mo Kwong Sang v R, the CA laid down the guideline that the usual starting point for robbery with weapon displayed by a single robber is 5 years imprisonment[6]. InYau Kwok Tung, the CA stated that a sentence of 4 years imprisonment is at the top end of the tariff for robberies where weapons are not displayed[7]. In Ting Chiu, the CA also stated that sentence for an unarmed robbery should as a matter of principle be lower than that for an armed robbery of the kind envisaged in Mo Kwong Sang.

16. In the present case the robbery was committed by at least 4 culprits, including D, acting in concert. It occurred in the early hours in a public place.

17. I do not consider the fact that the victim was heavily under the influence of alcohol and thus was not fully aware of what was happening amounts to a valid mitigating factor, as such a person deserves protection as much as a person in sober state in a public place. Given the seriousness of the offence, the personal backgrounds of D and his reasons for the commission of the offences carry little weight. The lack of previous criminal conviction in Hong Kong is not a mitigating factor either, as D was only a visitor here on short duration. In any event it could only be regarded as no aggravating factor on this issue. However, I do accept that no weapon had been used in this case, the force used on the victim was not great and there is no evidence that he had suffered any injury during the incident.

18. Having taken all relevant matters into consideration, I adopt 45 months as the starting point for Charge 1.

19. For Charge 2, D was fully aware that he was to be arrested by the Sergeant for the robbery he had just committed, yet he put up struggles and used strong force to push the officer away in trying to escape from lawful arrest, only to be subdued when another officer arrived in time to provide support to the Sergeant.

20. I do accept that there is no evidence that either of the 2 officers involved in subduing D had suffered any physical injury.

21. For Charge 2, I adopt 2 months as the starting point.

22. In HKSAR v Ngo Van Nam[8], the CA laid down discounts to be given when a defendant entered guilty plea at various stages of a criminal trial: 20% discount on the first day of trial and less than 20% during the trial (after the first day of trial).

23. This case was first called upon in the District Court on 28 February 2024. On 24 September 2024, D indicated not guilty pleas before the Listing Judge and the case was set down for trial on 16 June 2025 with 2 days reserved. D still maintained his not guilty pleas through his Counsel on the first day of trial, but changed his mind to guilty pleas on the second day only. However, I accept that due to reasons beyond D’s control, no formal pleas had been taken from him on the first day. I am prepared to accept that he entered his guilty pleas on the first day of trial. Therefore, D is entitled to about 20% discount for his guilty pleas.

24. The 2 offences are separate and distinct, the sentences should be served consecutively.

25. D is therefore sentenced as follows:

Charge 1:         36 months

Charge 2:         1 month and 2 weeks, consecutive to Charge 1

Total sentence: 37 months and 2 weeks.