HKSAR v. MD EMON SHA

DCCC 924/2022

[2023] HKDC 1654

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 924 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to three charges of theft. Charge 1, this offence was committed at 2130 hours on 25 July 2022 on Cameron Road, Tsim Sha Tsui. The defendant snatched from PW1 her property which was contained in a black handbag which was held under her left armpit. The property included her handbag, her card case, AirPods, credit card, bank card, Hong Kong ID card, iPhone and some other items totally valued at $15,500.

2.  In charge 2, the offence was committed around 0135 hours on 26 July 2022 at Chatham Road, Tsim Sha Tsui. The defendant pushed PW2 from behind, grabbed her handbag which she was carrying. PW2 struggled and resisted and fell to the ground. The defendant tore PW2’s handbag strap causing it to fall to the ground. The defendant picked up the bag and ran away with it. PW2 suffered injuries leaving red marks on her right and left arms and on her left hand and knee. The handbag and its contents were taken by the defendant, their value being around HK$5,200.

3.  Charge 3, this offence was committed around 2200 hours on 26 July 2022 at Salisbury Road near the Space Museum in Tsim Sha Tsui. PW3 was carrying both her own and PW4’s handbag. The defendant approached PW3 from behind, snatched both handbags from her. Passers-by gave chase. The defendant dropped the handbags. The two handbags were collectively valued at HK$12,000.

4.  The defendant was arrested on 27 July 2022 after some location by CCTV cameras. In his interview the defendant admitted the three offences. He had thrown the handbags away and used the cash obtained to settle debts. Now the defendant was a Form 8 holder at the material time of the thefts. The defendant himself is a Bangladeshi male, aged around 40, divorced, Form 8 holder in Hong Kong. He has been convicted previously with trafficking in a dangerous drug on 5 March 2015. He received a total sentence of 2 years and 6 months’ imprisonment.

5.  In mitigation, it is said the defendant fled Bangladesh after being injured in a bomb explosion which led to the amputation of his lower right arm. He came to Hong Kong in 2007. He is subject to recognisance and received a monthly subsidy from the ISS. The defendant in mitigation asked for a full one-third discount. The defendant originally indicated he would plead not guilty to charge 2 which was originally framed as a charge of robbery. The defendant had indicated pleas of guilty to the other charges, charge 1 and 3. The defendant later gave instructions to plead guilty to the charge of theft, to charge 2, in December 2022. Further indication was given to the prosecution in both December and January 2022/2023. The defendant also agreed or indicated he would plead guilty to an assault in respect of charge 2. The defendant continued to maintain a plea of not guilty to the charge 2 as framed as robbery until 29 September 2023 when the prosecution indicated by letter they would accept a plea of guilty to theft on charge 2.

6.  Furthermore, it is said in mitigation the defendant used no weapons, made little financial gain, he asked for consideration to be given to the overall totality of sentence given that all the offences occurred within a period of just over 24 hours.

7.  Now the approach to sentence is as follows: There is no sentencing guideline or tariff for theft by way of snatching. It is considered or has been considered to be akin to pickpocketing where a guideline does exist and it has been said in previous cases that sentences in the range of 12 to 15 months’ imprisonment have been adopted for cases of this nature, the snatching where no violence is used in the course of the theft other than the force necessary to obtain the property. That is the starting point for a first offender after trial and subject to any aggravating factors that exist.

8.  In this case the snatchings took place in well-used tourist locations against females. This I consider to be an aggravating factor. The defendant is also a Form 8 holder, this has been held to be an aggravating factor and I will apply it in this case. Therefore it would appear in respect of charges 1 and 3, two aggravating factors exist.

9.  In respect of charge 2, there is a further and additional aggravating factor of the use of force in the course or after the snatching which resulted in some injuries to the victim which appear to have been incurred by her fall. Having set out those factors I will now deal with the starting points for each charge.

10.  For charges 1 and 3, they are cases of snatch by theft simpliciter. I will adopt a starting point for sentence of 12 months’ imprisonment enhanced by 6 months’ imprisonment to 18 months’ imprisonment to reflect the two further aggravating factors. After deduction for plea of guilty, the defendant indicating a plea to that charge from an early stage, the defendant will be entitled to a full one-third discount on those charges. That leaves a final sentence on charges 1 and 3 of 12 months’ imprisonment on each.

11.  For charge 2, the snatching involves the use of a degree of force for which the victim received injuries. This is a serious aggravating factor. I will take for this charge a starting point of 18 months’ imprisonment enhanced by 6 months to represent the two further aggravating factors which are applicable to all these charges. That will lead to a starting point for sentence of 24 months in respect of charge 2.

12.  I indicated the defendant had pleaded guilty to this charge at trial in front of this court and indicated a plea to that charge at an earlier stage. As indicated before, the defendant was originally charged on charge 2 with robbery to which he indicated a plea of not guilty to that charge. In December 2022, the defendant indicated a plea of guilty to theft on that charge and that occurred on 21 December 2022. On 9 January 2023, defendant offered a plea to theft and assault as an omnibus charge. The charge remained “Robbery” until 26 September 2023 when the prosecution accepted a plea of guilty to theft for charge 2. The court was informed on 29 September 2023.

13.  I consider the defendant’s indication of plea to theft on the robbery was not at the earliest available opportunity but it was sufficiently early for him to receive at least a 25 per cent discount on charge 2. So I will apply 25% discount on charge 2. That leads to a sentence after deduction for his plea on charge 2 leads to a final sentence of 18 months’ imprisonment.

14.  The offences are separately timed and could be sentenced consecutively. However, I consider that given their positioning in time and given that the consecutive sentencing would lead to an excessive sentence, they should be served at least partly concurrently and consecutively. I consider the overall sentence for these three charges given the aggravating factors and their nature should be one of 27 months’ imprisonment. I will order this to be achieved as follows:

15.  Charges 1 and 3 will be served concurrently to each other. Charge 2 will be served 15 months consecutively to charge 1 and 3, the balance concurrently, leading to an overall sentence in this court of 27 months’ imprisonment.