HKSAR v. GURUNG MAMIT RAJ

DCCC 647/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 647 OF 2012

____________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleads guilty to one charge of robbery of one iPhone, contrary to section 10 of the Theft Ordinance, Chapter 210.

2.  At about 7.00 p.m. on the 29th May this year a 14 year old boy, was returning home. While the boy was talking on his iPhone the defendant suddenly attempted to snatch the phone.  When the boy resisted by holding his phone tightly the defendant struggled in an attempt to take the phone.  After about one minute the defendant said he would beat the boy if he did not let go.  In fear the boy let go of his phone.  The defendant then fled with the boy chasing after him until the defendant entered a building at 200-210 Temple Street. 

3.  A short while later an off-duty police officer approached the boy, who told him about the robbery and gave a description of the defendant.  The police then entered the building and located the defendant on the 3rd floor staircase.  The defendant after being handcuffed told the police the iPhone was in his residence on the 5th floor.  The iPhone was later recovered hidden in a pair of trousers found in the defendant’s home.  Under caution the defendant admitted he stole the iPhone to obtain money to finance the purchase of drugs. 

4.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Pickavant together with the letter from the St Stephen’s Society.  I have carefully considered the content of the background report. 

5.  No knife or weapon having been used the proper basis for sentence is that which is appropriate for an unarmed robbery.  The starting point for unarmed robbery is generally no more than 4 years imprisonment, for example see R v YAU Kwok-tung [1987] HKLR 782 as applied in HKSAR v TING Chiu[2003] 3 HKLRD 378.  There are however cases where sentences higher than 4 years imprisonment have been upheld for unarmed robberies, for example see HKSAR v CHUI Chi-hung [2007]  2 HKLRD 409.

6.  Whilst each case is decided upon its own particular facts and circumstances I would refer to three cases, which have some similarities to the present case.  First, in HKSAR v LAM Ka-hung CACC 294/2003, a 57 year old female was walking home in the early evening when her handbag was snatched.  When the lady resisted there was a struggle resulting in her falling to the ground and sustaining a minor abrasion to one of her fingers.  The Court of Appeal, noting the defendant had eleven previous convictions although none for either robbery or violence, said a 4 year starting point was appropriate.

7.  Second, in HKSAR v Tsang Wai-man CACC 288/2006 the Court of Appeal again said a 4 year starting point was appropriate where two robbers picked on young boys aged between 13-18, slapping, punching and kicking the boys although no actual injuries were caused to any of the boys. 

8.  Third, in HKSAR v Ku Kwok-wai & another CACC 14/2012 the defendants, who were 21 and 22 and of clear records, forcefully snatched an iPhone from a 17 year old female student in the early hours of the morning.  The force used was a push in the back by one of the defendants whilst the other defendant acted as a lookout.  The female suffered no injuries.  The Court of Appeal agreeing this was a step-up from a theft or snatching upheld a starting point of 3 years and 3 months imprisonment (see paragraph 19 of the judgment). 

9.  As in that case I am satisfied the present case is also a “step up from a theft or snatching” by reason of the fact the defendant continued to struggle for about one minute in an attempt to get the phone and then threatened to beat up the young boy if he did not let go of his phone, the young boy having been clearly targeted as a victim by reason of his young age of 14.

10.  The defendant does not have a clear record, with convictions for possession of a prohibited weapon in 2007, when he was nearly 16 and assault and theft in 2008, when he was nearly 17.  For the offence of possession of a prohibited weapon the defendant was sentenced to community service but breached that order and was re-sentenced to a period of detention in a Rehabilitation Centre.  For the offences of assault and theft the defendant was sentenced to a period of detention in a Detention Centre.

11.  Clearly the defendant’s problem is one of drugs.  As revealed by the background report the defendant first started taking drugs in Nepal when he was 12.  At the last hearing Mr Pickavant submitted that the court should, in view of his young age, look to rehabilitation by way of a Drug Addiction Treatment Centre order.  Today Mr Pickavant accepts that a DATC order is not appropriate and asks that I impose a lenient sentence.

12.  I will nevertheless deal with the submission that a rehabilitation course should be adopted.  In support of his submission Mr Pickavant relied upon the approach taken in HKSAR v Siu Chi-ming & others DCCC 871/2011, which concerned a robbery committed by young offenders aged 16-21, all of whom had previously been sentenced to Detention Centre, Rehabilitation Centre or Training Centre.  The court in that case was of the view the defendants required further training and therefore imposed either a Detention Centre or a Training Centre order. 

13.  A similar approach was taken recently by the Court of Appeal in HKSAR v WONG Tsz-hin CACC 38/2012 in respect of a 16 year old convicted of robbery and who had a clear record.  The Court of Appeal set aside a sentence of 4 years and 2 months for two counts of robbery and substituted a Training Centre order.

14.  I note the facts of both these cases are more serious than the present case.  Those cases were not however concerned with drug addicts.  Whilst the need for drugs may provide the reason for the defendant’s conduct this is not a good excuse for committing robbery (see HKSAR v Li Siu-wah CACC 389/2008).

15.  The defendant was 20 at the time he committed the offence but now having turned 21 is too old to be sentenced to detention in a training centre.  In any event by reason of his drug addiction he would most likely not be recommended for training in a training centre. 

16.  Whilst the defendant was last before the court in 2008 when he was nearly 17, he clearly has not taken advantage of the opportunities given by the court to change his way of life.  As noted earlier having been sentenced to community service he breached that order and was re-sentenced to a period of detention in a Rehabilitation Centre and not long after release was sentenced to detention in a Detention Centre for offences of assault and theft.

17.  The defendant has continued to take drugs for which, according to Mr Pickavant, he has twice received voluntary treatment with  St Stephen’s Society.  Regrettably the treatment has not rid the defendant of his habit, the defendant according to the background report spending $140 per day on drugs.  Out of work and no money the defendant resorted to robbery in an attempt to feed his habit.

18.  Whilst it is in everyone’s interest the defendant rid himself of his drug addiction, I am satisfied, in all the circumstances, a DATC order would not reflect the gravity of the case.  Furthermore I am satisfied the defendant will receive appropriate treatment for his addiction while serving sentence.

19.  Taking into account on the one hand that this was a robbery on a 14 year old boy in the early evening; and on the other hand that the defendant acted alone; the boy did not receive any injuries in the struggle; the defendant co-operated with the police resulting in the iPhone being recovered; and that the defendant was last before the court in 2008 when he was nearly 17, I am satisfied the proper starting point after trial is        3 years and 3 months imprisonment.

20.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 2 months imprisonment.