HKSAR v. SABAR HUSSAIN

DCCC 748/2021

[2022] HKDC 733

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 748 OF 2021

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REASONS FOR SENTENCE

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Charge

1.  The Defendant pleads guilty to attempted robbery.

The Incident

2.  In around October 2020, PW1 and his wife became street sleepers, living at a sitting-out area on the street in Yuen Long, New Territories, in Hong Kong (the “Park”).

3.  At about 15:08 hours on 13 May 2021, PW1 and his wife were repairing their bicycle in the Park. Suddenly, the Defendant rode on a bicycle (“the bicycle”)  and approached PW1 and his wife.

4.  The Defendant asked PW1 something in English and PW1 did not reply. The Defendant then asked PW1 in Punti with an accent if he had any cigarettes. PW1 replied in the negative. The Defendant further requested HKD 300 from PW1 to which PW1 replied in the negative. The Defendant then took out a 4-inch-long knife from his right waist and pointed it at PW1 and uttered in Punti: “I have a knife. Take out money and cigarettes”.  PW1 replied he had none and his wife reported the case to the police.

5.  PW1 saw that the handle of the knife held by the Defendant was in a zig-zag shape and there was a logo of a cartoon “Naruto” (火 影 忍 者 )  between the handle and the blade.

6.  PW1 told the Defendant that the case had been reported to the Police and he took photos of the Defendant with his smartphone. The Defendant fled from the scene.

The Arrest, VRIs, Identification Parade and House search

7.  In the morning of 14 May 2021, the Police went to the Defendant’s residence in Yuen Long. The Defendant was seen pushing the bicycle while walking out of his residence. At that time, he was wearing the same outfit of the offence time. He was arrested at 08:00 hours and his clothing and the bicycle were seized by the Police.  It was revealed that the Defendant was a Form 8 recognizance holder.

8.  A cautioned video-recorded interview (the “first VRI”)  was conducted with the Defendant and the assistance of English and Urdu interpreters. In the first VRI, the Defendant indicated that he had been to Yuen Long to meet up with friends for a festival. He admitted that he had met a male and female who kept asking him to leave. He denied having talked to the couple, threatened them with a knife or demanded the male to give money or cigarettes.

9.  An identification parade was held with the assistance of an Urdu interpreter, in which PW1 positively identified the Defendant.

10.  A house search was conducted by the police at the Defendant’s residence in his presence, assisted by an Urdu interpreter.  During the search, a knife, which matched PW1’s description, was found near a light switch in the Defendant’s bedroom and was seized by the police.

11.  A cautioned video-recorded interview (the “second VRI”)  was conducted with the Defendant and the assistance of English and Urdu interpreters. The Defendant indicated that he had picked up the knife from a refuse collection point in Yuen Long.  However, he denied having taken the knife out of his residence. He admitted being able to speak Cantonese to a limited extent.

12.  All the procedures were conducted in turn on the same day of his arrest.  

Mitigation

13.  The Defendant is now 37 years of age.  He was born in Pakistan.  He came to Hong Kong in 2007 to apply for asylum hence his status of Form 8 recognisance holder.  He could have no job due to this status.

14.  He had no dishonesty records but 3 violence records as follows:

(1)  Criminal damage (sentenced in 2011 to 1 month’s suspended sentence);

(2)  Assaulting a police officer (sentenced in 2015 to 3 months’ suspended sentence, later activated due to the next record);

(3)  Assault occasioning actual bodily harm (sentenced in 2017 to 2 months 2 weeks).

15.  I consider these relatively minor and not recent records.  I do not aggravate his present sentence because of them.   

16.  His counsel informs me that he was under the influence of alcohol so he foolishly attempted to rob PW1 at the park in the middle of the afternoon.  His demand was not much. (although I very much doubt if PW1 thought likewise.)  He pointed the knife at PW1 but did not use it when PW1 refused to pay and instead took his photo.  He was not smart enough to discard the distinctive looking knife after the incident. 

17.  On 7 December 2021, trial was fixed for 19 July 2022 with 4 days reserved.  By a letter dated 30 March 2022 purportedly faxed to the Registrar by his solicitors, his solicitors sought to inform the court (c.c. prosecution)  of his decision to plead guilty.  For reasons apparently not due to the Defendant, the letter had gone astray for a few months.  Now the hearing is before me, on this 19 July 2022.  In the circumstances, I shall take 30 March 2022 as the date the Defendant formally indicated his wish to plead guilty.  I shall give him close to one-third discount as I reckon trial preparations by the prosecution had not begun as at 30 March 2022.     

18.  Where the defendant had displayed a knife to rob the victim, the sentence shall normally be 5 years (Mo Kwong-sang v The Queen [1981] HKLR 610). 

19.  Where the defendant is a Form 8 recognisance holder committing an offence affecting the public and the reputation of Hong Kong as a safe and orderly world class city, it is an aggravating factor in his sentence (HKSAR v Singh Gursevak [2019] HKCA 179). 

Sentencing the Defendant

20.  PW1 and his wife were vulnerable and easy victims as they lived on the street.  I take a starting point of 5 years on the facts.  On top of that, his Form 8 recognisance holder status warrants an increase of 6 months. From 5 years 6 months, I reduce it by one year to reflect that he had not gone further with his attempt and his act did not cause much alarm to PW1 or his wife.  The actual starting point is 4 years 6 months.  I reduce it by 1 year 4 months to reflect his plea of guilty.  The sentence is 3 years 2 months.