HKSAR v. ANIL KUMAR AND OTHERS

DCCC 265/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 265 OF 2016

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Reasons for Sentence

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1. The defendants, who are jointly charged, have each admitted the charge they face, namely, robbery, contrary to Section 10 of the Theft Ordinance, Cap 210.

2. As they each speak Punjabi, a Punjabi interpreter was arranged and the proceedings were all interpreted into Punjabi for them.

The facts

3. They have each admitted the summary of facts dated 5 August 2016 that was read into the record by Mr McGuinniety.

Counsel on their behalf also confirmed that they each admitted these facts.

4. The facts disclose that Mr Lee Chung-kei was working inside a 7-Eleven convenience store at Shop No 3A, Ground Floor, Nos 20 to 24 Ma Tin Road in Yuen Long in the early hours of 20 December 2016.  He was working at the staff counter/cashier, which had a CCTV camera with voice recording function operating and it was working properly at the material time and recording what was happening within the store.

5. At about 3 am, the three defendants entered the store.  They were each wearing surgical masks and had on “hoodies” covering their heads.  They ordered some items, when suddenly D1 threw some chilli powder in the face of Mr Lee.  At the same time, one of the defendants swore at Mr Lee in Cantonese.  D1 and D2 forced their way behind the counter and D2 hit Mr Lee on the head several times.

6. At this point, D3 went outside the shop to act as the lookout.  D1 tried to open the cash register but failed.  D2 then proceeded to hit Mr Lee with his hands on his upper body until he opened the cash register for them.  D1 and D2 took approximately HK$2,848 from the cash register and a packet of Marlboro cigarettes and then fled.

7. During the robbery, Mr Lee was pleading for his safety and repeatedly asked the defendants to calm down.  Despite the chilli powder hurting his eyes, Mr Lee was able to trigger the store’s security alarm. 

8. The CCTV footage of what happened inside the store from the time the three defendants entered the store until they left was viewed by the court.

9. A couple who were standing nearby during the incident and saw what happened made a report to the police and were later escorted around the vicinity to try to locate the defendants. 

10. About half an hour later and about 2 kilometres away from the store, they pointed out the three defendants to the police as the three men they had seen in the store involved in the robbery. 

11. The defendants were searched.  Cash totalling  $2,060.40 were found on the three defendants.  A packet of chilli powder and a packet of Marlboro cigarettes were found from D1.  D1’s jacket that he was wearing was tainted with chilli powder similar to that used in the robbery. 

12. The three defendants were arrested and cautioned, but remained silent under caution.

13. In the subsequent video record of interviews under caution, each defendant denied the offence.  The clothing, colour and general pattern of the clothes worn by each defendant when they each were intercepted and arrested matched that of the three males captured on the CCTV footage.

14. The traces of orange powder found on D1’s jacket and on his body were seized and forensic examination showed they contained solid capsacin and dihydrocapsaicin.

15. The medical report of Mr Lee showed he had suffered redness of both eyes and tenderness on his scalp.  The medical report itself was submitted to the court.

16. I was satisfied beyond all reasonable doubt that the facts admitted by each defendant supported the charge and accordingly I convicted each of them of the offence of robbery.

Mitigation and sentencing considerations

17. The antecedent statements of each defendant was read into the record by Mr McGuinniety.  No issue was taken by any of the defendants in respect of the contents.  All the defendants had clear records. D1 is now aged 34 years, D2 is now aged 30 years and D3 is now aged 36 years.

D1

18. D1 came from Haryana near Delhi in India.  He is educated to Grade 10 in India.  He is a Form 8 Recognizance holder.  He came to Hong Kong illegally in 2014 by boat.  During a stop and search in January 2015 his illegal presence in Hong Kong came to the attention of the Hong Kong authorities.  He lodged his claim for asylum. 

19. I am told that he was having a love affair with a girl in India, whose parents were of a higher social standing and who did not approve of him for their daughter.  They worked in the government and had influence with the authorities.  They threatened to kill him and that is the reason he left India.

20. Mr Beel submitted that the robbery itself was short-lived, about two minutes in all.  Although Mr Lee must have been terrified, fortuitously he did not sustain serious injuries.  He submitted that drink had a part to play.  The defendants had been drinking prior to the robbery.  There was no forethought or planning and it was fairly unsophisticated.

21. I did not accept this.  The three defendants went into the 7-Eleven convenience store at about 3 am.  They each wore surgical masks and jackets with “hoodies”.  The “hoodies” covered their heads when they entered the store.  The only purpose must have been to conceal their faces.  D1 came equipped with chilli powder to use on the staff of the store and he did use it.  He threw it in the face of Mr Lee towards his eyes.

22. That they had been drinking prior to committing the robbery, in my view, does not amount to mitigation. 

23. Mr Beel submitted that all the stolen money had been recovered from the defendants.  In fact, not all was recovered.  The amount stolen as set out in the particulars of charge was $2,848; the amount recovered from the three defendants, as set out in the admitted summary of facts, was $2,060.40.

24. It was also submitted that D1 only received $290 from the International Social Services as travel expenses.  $1,500 was paid directly to his landlord and he received food vouchers to the tune of $1,200. 

25. It was further submitted that D1 had indicated at an early stage his intention to plead guilty.  He had also indicated his willingness to give evidence against his co-accused, but this was not entertained by the prosecution.

26. Mr Beel submitted a number of authorities on sentence for robberies.  He submitted that the one that was most relevant was HKSAR v Chan Sai Chu [2001] 1 HKLRD 478, where the Court of Appeal held that for a robbery involving pepper throwing, a starting point of 4 years’ imprisonment was appropriate. 

27. He submitted that the starting point in a robbery where an article (chilli powder here) was used to incapacitate a victim, 4 years was the appropriate starting point, even where there was more than one robber. 

28. He accepted that the fact that D1 was a Form 8 holder was an aggravating factor, but submitted that each case had to be looked at on its own facts.

D2 and D3

29. Mrs Panesar mitigated on behalf of both D2 and D3.  She adopted what Mr Beel had submitted on behalf of D1.  She submitted that the robbery herein was at the bottom end of criminality.  The robbery lasted only two minutes. 

30. She also submitted that D3 stood at the back and then went outside as lookout.  He himself did not use force and his role could be distinguished.

31. It is trite law that those who participate in the commission of an offence will invariably share an equal culpability.  The lookout is no less culpable than his co-accused.

32. This was a joint enterprise.  That D3 did not himself use force but stood there watching what D1 and D2 did does not make his role any less serious. 

33. Nor do I accept that the criminality here is at the lower end.  One has only to view the CCTV footage to see the degree of force used by D1 and D2 on Mr Lee, apart from the chilli powder being thrown at his face.

34. Mrs Panesar also submitted that drink had a part to play.  They had been drinking whisky in the park, mixed with beer, which had an enhanced effect. 

35. She submitted they had pleaded guilty as they had each intended to commit the offence, but it was not a pre-planned offence, but rather on the spur of the moment.

36. I do not accept that there was no planning.  D1 was equipped with the packet of chilli powder.  They each wore surgical masks and had on their “hoodies” over their heads.

37. Also, having had alcohol prior to the offence does not make the offence less serious.  To quote the authors of “Sentencing in Hong Kong”, seventh edition, at page 344:

“The influence of alcohol in the commission of an offence is not in general a reason for reducing a sentence. In R v Liu Ping Kin [1993] 2 HKC 192 at page 195, Penlington JA said, the accused “apparently has a problem with alcohol but we do not consider that as a mitigating factor.” In R v Grossi (2008) 183 A Crim R 15 at 32, Redlich JA observed that drug or alcohol induced conditions have not, as a general rule, required any significant moderation of these sentencing considerations”.

And, further, they said:

“The policy of the law is to decline to give an accused a reduction of sentence on the ground of drunkenness at the time of the offence. Rosenberger ex p A-G [1994] 76 A Crim R 1, he must expect to receive the sentence his offence merits. R v Paton [1982] Crim LR 58.”

38. D2 and D3 each pleaded guilty and each had clear records in Hong Kong and in India, where they came from.  D2 came to Hong Kong in 2011 and D3 in 2014.  Both of them have lodged their claims for political asylum. 

39. D2 was a farmer in India.  There was dispute over land in the family and D2 became a victim.  His paternal uncle was a policeman and not minded to give land to D2 and his family.  There were threats to D2’s life and therefore he sought refuge in Hong Kong. 

40. D3 is married with two children.  He became embroiled in a political dispute and was forced to escape with his life.

41. Mrs Panesar submitted that D2 and D3 were displaced people.  They were content with their lives in their home country. They were forced to come to Hong Kong and live in terrible conditions.  They were remorseful and had indicated their intention to plead guilty.  She sought leniency on their behalf. 

Sentence

42. The maximum penalty for the offence of robbery upon conviction on indictment is life imprisonment.  I have to consider the appropriate starting point in respect of an offence of this nature. 

43. The case of Mo Kwong Sang v R [2001] 1 HKLR 610 deals with cases where a weapon is used. 

44. While there is well-settled sentencing guideline in respect of armed robbery, there is no sentencing guideline in respect of unarmed robbery.  Here, chilli powder was used to disable or distract the victim and he was assaulted by D1 and D2 using their hands, which would fall into the category of unarmed robbery.  A starting point of 4 years’ imprisonment has been adopted for cases of robbery where weapons are not displayed. 

45. The starting point of 4 years for unarmed robberies has been upheld by the Court of Appeal in a number of cases, such as HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378 and HKSAR v Lam Chun Nam [2008] 2 HKCLRT 137, cases referred to by Mr Beel.

46. The case of HKSAR v Chan Sai Chu (supra) is of relevance.  The Court of Appeal said that for a robbery involving pepper throwing, a starting point of 4 years’ imprisonment was appropriate.  However, in that case, it was a single robber and although pepper was thrown at the 54-year-old female victim’s eyes and her handbag forcefully snatched from her as she was walking up the staircase to go home, she was not assaulted, as Mr Lee was here.

47. Mr Lee was working in the 7-Eleven convenience store and it was in the early hours of the morning when the three defendants entered the store and one threw chilli powder at Mr Lee’s face and he was subjected to a forceful assault to force him to open the cash register. 

48. In my view, the facts here warrant a starting point of 4 years and 6 months’ imprisonment.

49. All three defendants are Form 8 Recognizance holders and their non-refoulement claims are yet to determined.

50. In HKSAR v Shah Syed Arif, CACC 298/2015, the Court of Appeal said, at paragraph 30:

“As we have said, no issue is taken with the obvious proposition that those who are privileged to be permitted to remain in Hong Kong and to be at liberty whilst their various claims for asylum are being determined by the authorities, are required to behave themselves and abide by the laws of this jurisdiction. If they abuse that licence by deliberately engaging in serious criminal activities aimed at the very community which has granted them that privilege, and if the crime in which they engage has the effect of tarnishing Hong Kong’s reputation for order and security, which are the very qualities they are seeking to secure for themselves, then that is a factor capable of aggravating the seriousness of their crime. In HKSAR v Sandagdorj Altankhuyag, as the judge was fully aware, we drew a distinction between crimes committed by claimants, which do not affect the community at large or have any significant impact on Hong Kong’s reputation, and those which do.”

51. And later in the same judgment, at paragraph 35:

“We do not in the circumstances think it is either prudent or possible to issue guidelines in cases which fall into the category we have been discussing. The enhancing of sentence is best left to the discretion of the sentencing judge or magistrate. Obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.”

52. Here, the defendants entered a 7-Eleven convenience store in the early hours of the morning, wearing “hoodies” and surgical masks.  D1 threw chilli powder, which he had brought along, at the single member of staff on duty there and D1 and D2 assaulted him to force him to open the cash register while D3 went outside the store to act as a lookout.

53. The offence of robbery is a serious offence and it does have an impact on the community at large and on Hong Kong’s reputation for order and security.

54. In the circumstances, the starting point should be enhanced.

55. I would enhance the starting point of 4 years and 6 months’ imprisonment by a further 3 months, as I am satisfied that the offence herein is an offence that does have an impact on the community at large and on Hong Kong’s reputation for order and security.

56. Taking into consideration the mitigation and the facts of the present case, I will therefore adopt a starting point of 4 years and 9 months’ (that is, 57 months’) imprisonment for each defendant on the charge.

57. Since each defendant has pleaded guilty to the offence, they are each entitled to the usual one-third discount for their plea.

58. In my view, this is the only mitigation of weight before me.  Apart from the guilty plea, I do not find any other mitigating factor justifying a further reduction of sentence.

59. They are therefore each sentenced to 38 months’ imprisonment.

(Discussion re typo in summary of facts)

60. In my view, the amount seized from the defendants does not really impact on the sentence, but I would correct paragraph 4 of the reasons for sentence so that the amount should read “$3,060.40” and I would also correct paragraph 10 to delete the last sentence beginning “In fact, not all was recovered.  The amount stolen, as set out in the particulars of charge, was $2,848 and the amount recovered from the three defendants, as set out in the admitted facts, was $2,060.40”.  I would delete that last sentence.

61. And, apart from that, I would also correct the summary of facts so that paragraph 10 should read “3,060.40” rather than “2,060.40”.