HKSAR v. KHAN FARAZ AHMED AND ANOTHER

DCCC 200/2020

[2021] HKDC 3

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 200 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

D1 and D2 are jointly charged with an offence of "Robbery" (Charge 1). D1 alone also faces another charge of "Robbery" (Charge 2).

2.  D1 pleaded guilty to both charges.  D2 was found guilty of Charge 1 after trial.

Summary of Facts

Charge 1

3.  Around midnight between 13 and 14 July 2019, Madam Ye (then aged 27 and 9 months pregnant) was on her way home.

4.  Upon reaching the area outside Ma Tau Kok Road Public Toilet & Bathhouse situated at No.180 Kowloon City Road, she heard some sound of hasty footsteps from behind.  As she was about to turn around, someone covered her head with a red-check shirt.  Her handbag was then snatched away from her.  The contents of her handbag are particularized in Charge 1.

5.  The red-check shirt was soon removed from Madam Ye's head.  She saw 2 males running towards San Shan Road.  She noticed one of them holding a red-check shirt in his left hand and her handbag in his right hand; the other male was holding nothing.

6.  Madam Ye shouted for help and chased after the 2 males.  In the course of her pursuit, she fell on the ground and sustained abrasions on her knees and right palm. The 2 males then went out of her sight.

7.  Madam Ye's handbag was later found near a public toilet at To Kwa Wan Recreation Ground. When she was shown her handbag, she found all the cash ($4,000), 2 ATM cards, a Huawei mobile phone and 1 Octopus card missing.  Her identity documents, credit cards and other miscellaneous items remained inside.

8.  Parts of the incident, except the actual robbery, were captured by CCTV footage.

9.  D1's fingerprint (left forefinger) was found on a medical appointment slip which remained in Madam Ye's handbag. 

Charge 2

10.  Around 4:30 a.m. on 18 July 2019, Madam Lam (then aged 70) was exercising at the Hung Hom Promenade, near Hung Hom Ferry Pier.

11.  Suddenly, someone hooded Madam Lam's head with a piece of clothing.  She felt someone restraining her head with both hands whilst another person pressing her arm down, thereby causing injury to her left elbow.  Someone then snatched the shoulder bag away from Madam Lam.  The contents of her shoulder bag are particularized in Charge 2.

12.  When Madam Lam got back on her feet, she saw 2 unknown persons running towards Hung Hom Ferry Pier.  She gave chase but they went out of her sight after several seconds.

13.  Madam Lam's shoulder bag was later found next to a phone booth near Hung Hom Ferry Pier. Upon checking, she found all the cash ($250), 1 Octopus card and a bunch of keys missing.  Her Hong Kong Identity Card, however, remained inside.

14.  CCTV footage captured Madam Lam struggling with 2 persons.  She later fell on the ground and the 2 persons ran towards Whampoa Garden.  About a minute later, D1 and another person walked past a phone booth near Hung Hom Ferry Pier.  D1 then walked back towards the phone booth for a brief moment.  About 2 minutes later, Madam Lam reached the phone booth.

15.  A DNA mixture was obtained from the inside surfaces of a T-shirt seized from D1.  The mixture was found to have come from at least 3 persons.  D1 was found being a possible contributor to this DNA mixture; whereas Madam Lam could have been a possible contributor.

Arrest and Admissions

16.  Shortly after midnight on 19 July 2019, police officers stopped D1 and 3 other South Asian males for enquiries.

17.  D1 was initially arrested for the offence in Charge 2.  Under caution, he admitted that he went to Hung Hom Ferry Pier in the small hours on the day before.  D1 alleged that his 2 friends robbed someone and he only acted as a lookout.

18.  In his 1^st video recorded interview, which is related to Charge 2, D1 claimed that his friend Sayed robbed an elderly person near the ferry pier and he acted as a lookout.  D1 also identified himself as one of the 2 culprits captured by the CCTV footage.

19.  In his 2^nd video recorded interview, which is related to Charge 1, D1 claimed that his friend Mufeez and Mufeez's friend robbed a female and he acted as a lookout.  He alleged that Mufeez's friend used a shirt to cover the lady's head and Mufeez snatched the handbag from her.  D1 then ran away together with them.  D1 also identified himself and Mufeez in the CCTV footage.

20.  D2 was arrested for the offence in Charge 1 in the late afternoon on 19 July 2019. Under caution, he replied in Punti "Ah Sir, I did not take part in the snatching.  I just did the lookout."  D2's reply was post-recorded in DPC 9014's notebook.

21.  In his 1^st video recorded interview, which is related to Charge 1, D2 claimed that his friend Faraz (i.e. D1) asked him to act as a lookout.  He claimed that he saw Faraz snatching a bag from a female.  When Faraz started running, he ran after Faraz.  They then took a taxi to Jordan.  During the taxi ride, Faraz gave $500 to D2.

Mitigation & Sentence

D1

22.  He is 19 and has 2 conviction records, which included 7 offences (none of which were related to "Robbery").  I am aware that only his 1^st conviction (which was a "simple possession" offence) predates the present case. The offences in his 2^nd conviction (mainly driving-related) took place in April 2020.

23.  Ms. Crebbin informed me that D1 basically grew up in Hong Kong and is educated up to F.4 level.  In mitigation, Ms. Crebbin submitted that D1 was doing well at his job as a car mechanic until he mixed with undesirable peers who introduced him to cannabis. In short, D1 committed the present offences in order to feed his drug habit. Ms. Crebbin stressed that D1 has learned his lesson and is truly remorseful.  A bundle of mitigation letters was placed before me; their contents are duly noted.

D2

24.  He is 20 and has a clear record.  Mr. Richmond informed me that D2 was born and raised in Hong Kong and has completed F.6.  He resides with his mother and siblings in a private rented flat in To Kwa Wan.

25.  In mitigation, Mr. Richmond submitted that D2 began to smoke cannabis out of curiosity in mid-2019.  He is not a hardcore drug addict.  Mr. Richmond stressed that the evidence against D2 comes from his admissions only.  According to his admissions, D2 refused D1's suggestion to "snatch" and merely agreed to be a lookout, thinking that it would be "alright" (albeit a mistaken belief).  Mr. Richmond submitted that the planning and execution of the robbery was done by someone else; and D2 was all along reluctant to assist D1.  Mitigation letters written by D2's siblings were placed before me; their contents are duly noted.

Sentence

26.  In view of their age, I called for pre-sentencing reports on D1 and D2 to ascertain their suitability for admission to a Detention Centre or a Training Centre.  Both of them are found unsuitable for either due to their drug dependency.

27.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime, needless to say to rob someone in order to get money to buy drugs.  A clear message must be conveyed to the general public that robbery is a dead serious crime and that the offenders would most certainly be punished by long-term imprisonment.

28.  According to the Court of Appeal's decision in HKSAR v ON Ling CACC 386/2004, the present case should not be regarded as an armed robbery. I do not consider the use of a shirt or a piece of garment to hood a victim constituted a weapon or display of a weapon. Thus, the sentencing guidelines stipulated in MO Kwong-sang v The Queen [1981] HKLR 610 are not appropriate.

29.  The most atrocious element in each charge is the vulnerability of the victim (a heavily pregnant lady and an elderly lady respectively). It is fortunate that neither Madam Ye nor Madam Lam was seriously injured. It is also fortunate that their identity documents and credit cards were recovered, which spared them the trouble of applying for replacements. On the other hand, each offence was committed by at least 2 persons late at night or early in the morning.

30.  The evidence against each defendant in relation to their role in each charge comes primarily from their own admissions. D1 and D2 both claimed to be a lookout in each robbery. D1 claimed that in Charge 1, it was Mufeez's friend and Mufeez who respectively hooded the victim and snatched her handbag; whereas in Charge 2, it was Sayed who robbed an elderly lady. On the other hand, D2 claimed that in Charge 1, it was D1 who snatched the bag from the victim. I have reminded myself that each person's admissions can only be used against himself. Based on the evidence before me, I can only treat D1 and D2 as having acted as a lookout in each charge. In any event, for both Charges 1 and 2, I consider the culpability of a lookout same as the person(s) who hooded the victim or snatched her bag.

31.  I have borne in mind the Court of Appeal's decision in HKSAR v TING Chiu & another [2003] 3 HKLRD 378 regarding the sentencing of unarmed robberies. Having considered all aspects of each charge, I take the view that the appropriate starting point should be 4 years' imprisonment.

D1

32.  I adopt a starting point of 4 years' imprisonment for each charge. With the timely guilty plea, the sentence is reduced to 32 months. Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, I sentence D1 to 32 months' imprisonment each for Charges 1 and 2.

33.  Bearing in mind the totality principle, I consider a global starting point of 5 years' imprisonment appropriate for both charges. With the timely guilty pleas, the overall sentence becomes 40 months. To achieve this, I order 8 months in Charge 2 to run consecutive to Charge 1.

D2

34.  Based on his own admissions, D2 was perhaps reluctant to participate in the "snatching". I accept that his role was relatively minor and passive. Thus, I am prepared to adopt a lower starting point of 3.5 years' imprisonment for Charge 1. Since he was convicted after trial, no guilty plea discount can be given. I will grant him a discount of 6 months for his clear record. I sentence D2 to 36 months' imprisonment for Charge 1.