HKSAR v. IMTIAZ KAMRAN

DCCC 539/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 539 OF 2016

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REASONS FOR SENTENCE

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Offences

1.  The defendant pleads guilty to three offences: Robbery (Charge 1); Breach of condition of stay (Charge 2) and Failing to surrender to custody without reasonable cause (Charge 3).

Facts of the case

2.  Charge 1: in summary, at about 2:30 am on 4 April 2016 two civilian visitors Ms Ko and Ms Isabelle were returning to their residence at Tai Shan House No 15 Upper Station Street, Sheung Wan.  At the time, Ms Isabelle was drunk.  When they were opening the main gate of their residence, a male suddenly approached them from behind and pushed Ms Ko to the ground while grabbing her handbag.  Ms Ko thus fell onto the ground.  The male succeeded in taking her bag and fled.  Ms Isabelle chased him but could not follow, and sustained abrasions from the chase.  Ms Ko did not suffer any injuries.  Inside the handbag were an IPhone a wallet two credit cards one cheque card one Octopus case and HK$100 cash.  None of the items had been recovered. 

3.  The incident was captured by the CCTV camera at the entrance of their residence.  The respective CCTV footages retrieved from nearby locations also captured that (i) shortly before the robbery, Ms Ko and Ms Isabelle walked towards their residence and about 1 minute later two males were seen walking in the same direction; (ii) the close up views of two males walking in the direction of the Upper Station Street at around 02:00 am on the same day.

4.  At about 02:55 am on 10 April 2016, the defendant was intercepted by the police.  Upon initial enquiry, the defendant told the police in Cantonese that he had together with a friend robbed a girl just that Monday and he himself was the one who pushed the girl.  The defendant was arrested and under caution said that he was only responsible for pushing and assisting, and his friend took everything in the bag. 

5.  At the subsequent video recorded interview, with the assistance of an Urdu Interpreter, The defendant said under caution that: (i) he and his Pakistani friend, Shohiab, finished drinking in Central in the small hours of the material day; (ii) they saw two females walking by and one of the two females appeared to be drunk; (iii) they decided to rob the two females at Shohiab’s suggestion and followed the two females; (iv) the defendant then pushed one of them, took her bag, passed the bag to Shohiab and fled.  The defendant identified the two males shown in screenshot taken from the CCTV footage of the close up views of the two males walking in the direction of Upper Station Street as himself and Shohiab.

6.  The defendant also admitted under caution that a shirt, a pair of pants and a pair of shoes seized by the police at his residence were worn by him at time of the said robbery.

7.  Charge 2: the defendant was permitted to remain in HK on his dependent visa until 10 March 2011.  No application for an extension of stay has been made by him.

8.  Charge 3: the defendant was absent from the hearing at the District Court on 9 August 2016.  An arrest warrant was thus issued.  He was rearrested on 3 September 2016 and under caution admitted absconding.

Mitigation

9.  The defendant has a clear record.  He, aged 27, was born in Pakistan. His father is a Hong Kong permanent resident.  His family has been living in Hong Kong for many years.  He has four brothers and all of them are HKID card holders.  In 2004, he came to Hong Kong to join his family and to settle down here.  He was sent to the Delia International School for further education for a period of 3 years.

10.  His mother gave birth to him and his brothers in Pakistan.  Upon reaching the age of around 15, they were brought to HK as dependents on their father.  Unhappily, the defendant’s relationship with his father deteriorated.  Their relationship became strange to a point that they are not speaking with each other.  His father has stopped supporting him and refused to renew the defendant’s dependent visa.  The defendant’s mother passed away in 2014 and the defendant was not invited to her funeral.

11.  Mr Andrews tells the court that, by 2011, the defendant could have made an application for permanent residency / a Hong Kong identity card by himself on the basis of 7 years’ continuous stay.  Because of his dependent status, the defendant was only aware that his visa would be dependent on his father to renew as and when required.  The defendant only came to know that he could make such an application as advised by Mr Andrews.  Shortly after the New Year this year, the defendant has already written two letters to the Immigration Department making a formal application for permanent residency.  Today, Mr Andrews informs the court of the latest development which appears to be that defendant may not be able to make such an application as, according to the Immigration Department, at the time of the application the defendant has to be legally staying in Hong Kong.

12.  Since leaving school, the defendant has always been in employment.  He had worked as a waiter and cargo handler before.  At the time around the robbery, he was working as a hairdresser making a monthly income of HK$10,000. He was living in a flat on Kowloon side. 

13.  He has a few friends, including Shohiab.  Shohiab is also a Pakistani living on his own in a flat in Kowloon and worked as a construction site worker.  They had a habit of going out together for a drink of alcohol or a meal about once a week.  Shohiab was a little more than a friend to the defendant and also someone with whom the defendant confided his personal problems or matters.

14.  On the night in question, as one of those typical occasions, they went over to HK Island for a drink and a meal.  After that, they decided to go home.  The defendant was due back at work the following day.  As they were walking along the street, they saw the two ladies across the street.  There was some backchat between the two ladies and the defendant and Shohiab,but nothing came out of it.  The defendant then intended to hire a taxi to go home.  Out of the blue, Shohiab suggested that they took the lady’s handbag.  The defendant was very much affected by the drink and, out of stupidity, agreed to go ahead with Shohiab’s suggestion. 

15.  The defendant went forward and nudged against the lady victim with minimal force.  The defendant ran off with the handbag.  As the ladies were making a lot of noises and screaming, he panicked and threw the handbag behind him.  At the time, he had no idea as to where Shohiab was.  He kept on running until he boarded a taxi.  He phoned Shohiab but he could not get in touch with him.  The following day, he got in touch with Shohiab and was told that he (Shohiab) had picked up the handbag.  No aggravating features, such as use of weapon, gain or motive, are present.  Ms Isabelle tipped over the curb and scratched her leg when she tried to chase the defendant. 

16.  When intercepted by the police, the defendant without any prompting immediately told them that he was the one who took the handbag.  During the course of VRI, he identified the two males shown in screenshot as himself and Shohiab to the police.  He also showed the police his mobile phone in which Shohiab’s name and phone number were stored.  Having been charged with the offence, he still cooperated with police and attended the ID parade.  Shohiab was also present at the ID parade.  However, the two ladies were unable to identify anyone. 

17.  As his hairdressing salon employer knew about the present case, the defendant had no difficulty in complying with the bail conditions.  He failed to appear before the court on 9 August 2016 as he had overlooked the date.  He has been remanded in jail custody for nearly 4 months since he was brought back before the court.  As observed by Mr Andrews, the imprisonment has had an obvious and markedly physical effect on him.

Sentence

18.  In passing the sentence, I have carefully considered everything said on behalf of the defendant by Mr Andrews.

Charge 1

19.  I note that the present case is one of unarmed robbery as no knife or weapon was used.  The starting point for unarmed robbery is generally not more than 4 years imprisonment: see R v Yau Kwok Tung [1987] HKLR 782 as applied in HKSAR v Ting Chiu [2003] 3 HKLRD 378.

20.  In HKSAR v Ku Kwok Wai & another, CACC 14/2012, the offence took place in the early hours of the morning.  The defendants observed the victim, a 17-year-old female, who was talking on her iPhone.  The victim entered into a building.  One of the defendants followed her into the lift lobby, pushed her in the back and snatched her iPhone.  The other defendant acted as a look out and waited at the entrance of the building.  The victim did not suffer any injuries.  The Court of Appeal agreed that this was a step up from a theft or snatching case and upheld a starting point of 3 years and 3 months.

21.  Taking into account the fact that the defendant pushed Ms Ko while grabbing her handbag, which resulted in Ms Ko’s fall to the ground, I find that the present case is also a “step up from a theft or snatching” case.  I note that the defendant committed the present offence with another person.  It is suggested in mitigation that there was some backchat between the two ladies and the defendant and the other male.  However, given the circumstances in which the offence took place, I do find that from Ms Ko’s perspective she would only have been aware of the defendant’s presence.

22.  The Prosecution accepts that the defendant did provide information of another person, whom he alleged to be Shohiab, to the police.  A person was arrested based on the information and that person was present at the identification parade as mentioned by the Defence.  However, according to the Prosecution, that person was not prosecuted for various reasons including the question as to whether that person was the same Shohiab as alleged by the defendant.  This clearly showed that the information provided by the defendant was, in my view, of no practical value which justifies a reduction in sentence.

23.  Even if the offence was committed at the suggestion of the other person involved, I am of the view that they shared an equal culpability.  Despite the suggestion that the defendant was affected by drinks, I understand from Mr Andrews that the defendant described himself as being stupid in agreeing to go ahead with the suggestion.  This, in my view, clearly indicated that it was a conscious decision made on his part.

24.  I find that the degree of force used was greater than that in Ku Kwok Wai.  Fortunately, Ms Ko suffered no injuries.  Ms Isabelle sustained injuries when she chased the defendant.  Those injuries were not directly caused by the defendant and, in my view, relatively minor.  I do not consider those injuries as an aggravating factor.  I am of the view that the appropriate starting point for the present offence of robbery is 3 years and 3 months.  I don’t find any other mitigating factors justifying a reduction.  Giving full credit to the defendant for his guilty plea, I sentence him to 2 years and 2 months imprisonment.

Charge 2

25.  The defendant is charged for overstaying for a period of just over 5 years. In HKSAR v TIONGSON PATRICIA MANALAD, CACC 268/2001, the defendant came to Hong Kong on an employment visa and overstayed for a period of about 1 ½ years.  On appeal, her sentence for the breach of condition was reduced from 6 months to 3 months.  The Court of Appeal took the view that it was the length of overstay that the court looked at and whether employment was taken during the period of overstay.  In HKSAR v. Guo Ting Fei, HCMA 195/2002 the defendant came to Hong Kong on an employment visa and overstayed for a period of nearly 5 years.  On appeal, a sentence of 8 months’ imprisonment after plea was upheld.

26.  I note that the present case involves a dependent visa not an employment visa in the cases cited above.  Taking into account that the defendant’s family is in Hong Kong and no application for an extension of his dependent visa was made by reason of his father’s refusal to renew his visa due to their poor relationship, I find the appropriate starting point to be 6months. I don’t find any other mitigating factors justifying a reduction.  Giving full credit to the defendant for his guilty plea, I sentence him to 4months’ imprisonment.

Charge 3

27.  The absconding period in question was just less than 1 month.  In HKSAR v Wong Chi Hung, CACC 300/2010, the defendant absconded for 28 days and, on appeal, a starting point of 3 months’ imprisonment was found to be appropriate. I find it appropriate to adopt this starting point of 3 months.  I don’t find any other mitigating factors justifying a reduction.  Giving full credit to the defendant for his guilty plea, I sentence him to 2 months imprisonment. 

28.  The three offences are separate offences and of different nature. Bearing in mind the totality principle, I am satisfied that a total of 30 months is sufficient to reflect the overall criminal criminality of the defendant. I therefore order 3 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1, 1 month of the sentence on Charge 3 to run consecutively to Charge 1 and 2.  I hereby sentence the defendant to a total of 30 months’ imprisonment.