HKSAR v. OBIAGWU, OLUCHUKWU CHRISTIAN AND ANOTHER

HCCC105/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 105 OF 2009

-----------------

          -----------------

 -----------------------------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

-----------------------------------------------------

COURT:   Stand up, please.  You two defendants are now to be sentenced for this offence of robbery; you, D1, upon your plea of guilty and you, D2, upon conviction by the jury after trial.

     This was, on any view, a particularly grave offence of robbery which targeted a business where there was likely to be a large amount of cash, where the robbers went armed with imitation guns, potentially lethal knives and strong tape to tie up and immobilise the victims, where the victims were terrorised by the use of a pistol to threaten death and by the use of the knives in an intensely threatening manner, where one of the victims was struck a blow and was rendered unconscious and suffered a minor wound and where the robbers made off with a very large sum of money, US$169,000 in all.

     No one, in considering the appropriate sentence for this offence, should fail to see the video-recording of this shocking and savage attack.  It is wholly fortuitous that no serious physical injuries were caused and it is no credit to you who went armed and willing to use force.  Had there been any resistance to your attack or any belief by you that you were being resisted, it must be inferred that you would have used those knives in a manner which could have been lethal.

     The video-recording taken from the CCTV shows business operating as usual at Xpert Exchange, with customers coming and going, having completed their business.  This company acted as a remittance centre for trade transactions between Hong Kong and African countries, so that suppliers and freight-forwarders could be sure of receiving payment in cash, always US dollars.  Hence, it kept large quantities of cash on the premises and you two must have known this and that is why you targeted this business.

     This was a carefully planned robbery.  You must somehow have known of the money and the low-level security in place at the business.  So you armed and equipped yourselves and you must have made preparations for your escape.  I reject any claim by you, D1, that this business was targeted because it was run by Nigerians of the same tribe with whom negotiations could take place afterwards.  It was targeted simply because it was cash-rich and was seen by you as an easy victim.

     D2, you entered the premises first with, as you admitted, the imitation pistols in your bag.  After a while you let D1 into the premises and, as we saw on the video, he came with a bag containing the knives which were some 30 centimetres in length.  Suddenly, the robber in the blue top, who was you, D2, entered the small cashier's office where PW1 was sitting at a desk and PW2, a customer, Mr Ko Yiu-hung, was sitting beside it.

     The pistol was pointed by you at PW1.  He was told that all the money in the safe should be handed over or he should consider himself a dead man.  The knife was quickly produced and raised high by you, D1(sic), and you lunged with it at PW1 and struck at PW2, who was hit with a downward sweep, causing a blow to his head and a cut to his shoulder.  He was rendered unconscious, whether by the blow or by sheer fright at what was happening.

     These two victims were tied up, gagged and blindfolded, using the reinforced packing tape, which you had brought with you, and some cable.  PW1 was already on the floor.  PW2 was lifted up to a sitting position to be bound and then pushed to the ground again.  The safe was emptied of cash and other items were taken and passed between the two of you for packing in your bags.

     Two other customers were knocking at the door, as we saw on the video, and the two of you let them in and they were immediately threatened with the pistols and the knives and ordered to lie down.  One was roughly searched and robbed of his mobile phone.  These people described themselves as being terrified and it is no wonder.  Your objective was to subdue them by terrorising them so that you could take everything valuable that came to hand.

     These were imitation firearms that you were using, called pistol-like objects here in Hong Kong; but I must make it crystal clear that it makes no difference to the gravity of this crime whether these were real firearms or imitations.  As was said by the Court of Appeal in Yu Tai-wing, in 1995, the chances are that police called to the scene of armed robberies where it is believed that firearms are being used might themselves be compelled to open fire and the risks to innocent bystanders are always present in such circumstances. 

     The two of you fled from this robbery, heading towards Yuen Long, to lie low in a guesthouse.  You must have had an escape plan of some sort but what it was can only be guessed at.  Meanwhile, the Nigerian community set out in large numbers to search for you, believing that they stood the best chance of locating you, using their own network of informants.  You were located and apprehended within 12 hours and most of the money and the other items were recovered.

     The Nigerian community was anxious to be seen as law abiding and responsible by the Hong Kong public.  It was not just aiming to obtain credit for solving the crime.  They acted properly in taking you and the recovered stolen property straight to the police.  I am satisfied that the injuries suffered by you, D1, were not inflicted maliciously.  The Nigerian community is to be commended for its public spiritedness. 

     Armed attacks of this nature will not be tolerated in Hong Kong and must be deterred by heavy punishment.  You, D2, Mbachu, have no mitigation whatsoever.  You are entitled to plead not guilty and fight the case, as you have, claiming that you were an innocent bystander; but you thereby forfeit the credit which would otherwise have been available for a guilty plea.  You have been convicted on strong evidence.

     You, D1, Obiagwu, have advanced personal mitigation relating to family matters; your wife's health and your loss of job.  You claim to have fled to Hong Kong because you feared your life to be in danger in Nigeria.  I note that you committed this very serious crime within a week of your arrival and, thus, claims that you are here as a refugee have a hollow ring. 

     However, you are entitled to a reduction of one-third from the sentence which would have been imposed if you, too, had been convicted after trial.  That discount includes credit for other personal mitigation that you have and your remorse reflected by your plea of guilty.  I will not, however, deal with you on the basis that you telephoned someone in the Nigerian community to tell them of your whereabouts and I disregard your claims today that, contrary to what you told the police, in fact it was you who organised this offence.

     I note the case, which has been put forward as being similar to this, CAAR4/2000.  I am not going to engage in a direct comparison of features of different robberies.  I must have regard to all the circumstances of this case in judging where the proper starting point for sentence lies.

     The sentence imposed upon you, D2, Mbachu, is 15 years' imprisonment.

     Obiagwu, you are sentenced to 10 years' imprisonment.