HKSAR v. NAIL RAI AND ANOTHER

DCCC 304/2020

[2021] HKDC 21

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 304 OF 2020

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Reasons for Sentence

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1.  The 1st and 2nd defendants have both pleaded guilty to Charge 1 on this indictment which is a conspiracy to steal. The 2nd defendant has also pleaded guilty to the 3rd charge which is to possession of a dangerous drug, the drug being herbal cannabis and a total of just over 2 grammes of that drug.

2.  The 1st charge embodies an agreement between the defendants to steal cash from a 7-Eleven store where the 2nd defendant worked as a cashier, and this was to be done by way of what it can be described as a fake robbery, a fake or falsified robbery.  When arrested, the 2nd defendant was also found to be in possession of some herbal cannabis and which is represented in the 3rd charge.  The 2nd defendant was employed by 7-Eleven as a staff or employee at a shop in Temple Street. 

3.  The 1st and 2nd defendants, are both young men and friends, in February of this year 2020, they both appeared to be in some financial difficulties.  Apparently inspired by a television drama, 2nd defendant came up with the idea of staging a fake robbery since both of them were running out of money, and they decided on the enactment of a robbery, the plan involved using an air pistol and a cutter.  The 2nd defendant had given the 1st defendant an air pistol earlier, and the 1st defendant had returned it to the 2nd defendant.

4.  On 20 February, the 2nd defendant gave the 1st defendant a bag which contained the air pistol, a cap or a hat and a cutter.  And on 21 February, the 2nd defendant called the 1st defendant to come and commit the fake robbery whilst the 1st defendant was at work.  The 1st defendant in the what was quite early in the morning entered the 7-Eleven shop.  The other employee besides the 2nd defendant, PW1, was tidying up goods in the storeroom.  So he was not present.  The 1st defendant took out the cutter, pointing it to the 2nd defendant who was in front of the cash register, requested the money.

5.  Following that, he took out the air pistol, pointed it to the 2nd defendant.  Then some $8,700 in cash were taken from the cash register, handed over by the 2nd defendant to the 1st defendant.  The 1st defendant then ran away.  Naturally, the incident was captured by the CCTV in the shop, and this is what I think you can describe as a pantomime being created in order to fool anyone who later looked at the CCTV camera so they imagined a real and genuine robbery had taken place.  

6.  Later, the 1st and 2nd defendants met and shared the cash.  Some of the money apparently had been dropped and could not be recovered. 

7.  As I said earlier on, on arrest, the 1st defendant was found in possession of a small quantity of herbal cannabis which was apparently for his own consumption. 

8.  As far as the defendants’ backgrounds are concerned, the 1st defendant is of Nepalese origin but born in Hong Kong.  He has a number of previous convictions committed as juvenile, two cases of theft for which he was placed on probation for 18 months and later cases of false imprisonment and attempted wounding for which he was sentenced to a detention centre.  The 2nd defendant is of clear record.

9.  The age of the defendants is relevant: the 1st defendant now aged 21 and the 2nd defendant aged 20.  So as I observed earlier, they are both young men.

10.  As far as their other backgrounds are concerned, I did obtain probation services’ reports on them and background reports.  And then on the 2nd defendant, I also obtained a training centre report. Their backgrounds are somewhat unremarkable.  The 2nd defendant is, however, recommended to serve a sentence at a training centre by the Correctional Services Department.

11.  The approach of the court to the - the 1st charge which is the most serious of the charges - is that there is, as far as I can find and counsel could find, there is no guideline sentence for the offence of conspiracy to steal.  The only partly relevant guideline would be that of theft from employer which would be relevant to the 2nd defendant.

12.  However, that guideline is, I consider, of little assistance as it cannot take into account the more aggravating features of this conspiracy.  And the truly aggravating feature in this conspiracy to steal is the decision to create a false or fake armed robbery complete with the kind of equipment used in such a robbery, namely, the pistol and the cutter to facilitate the theft.

13.  However, this does not put the sentencing approach into that of an armed robbery because it was a sham designed apparently to fool the investigators and to relieve the 2nd defendant of any responsibility.  But it does mean that the approach must take into account the risks entailed in such a façade being created.  One of course would be the risk that passing or investigating police officers would believe this was a genuine armed robbery and then pursue it in that way, possibly putting at risk passers-by and suchlike.

14.  It is also necessary to consider that the defendants timed this fake robbery so that the only other witness was not present and also that it was unlikely that other members of the public would be present, and also that the weapons procured were purely for show, not for use for intimidation or threatening behaviour or actions towards anyone else.  And as I have said, they were probably and most likely procured to fool the investigators looking at the CCTV recordings.  So therefore to arrive at the sentencing approach in this is to do it without the assistance of any guideline.  

15.  I take the position that overall, given the ages of the defendants (20 and 21), the 2nd defendant’s clear record, their relative youth and naivety, it means that a more lenient approach can be taken than would normally be taken.  I consider that a sentence of imprisonment is appropriate for this and an immediate sentence of imprisonment.  I do not think there is any grounds on which to suspend any sentence of imprisonment. 

16.  So on the 1st charge, conspiracy to steal, I will take the same starting point for both defendants, and that is one of 33 months’ imprisonment.  They are entitled of course to a one-third deduction from that.  So for the 1st and 2nd defendants, there would be a sentence of 22 months’ imprisonment on the 1st charge.

17.  And then when passing the sentence, the 2nd defendant has the recommendation of a training centre given his relative youth of 20 years.  However, I consider that to adopt this sentence would operate unfairly in his case as he has already been incarcerated since February, and this would not be taken into account.  If training centre were imposed, this would create a considerable disparity with his co-defendant and would in fact subject him to a much longer sentence of imprisonment than would be required by the offence which was committed and would engender a sense of grievance for him. 

18.  As far as the 2nd defendant is concerned, there is also the 3rd charge involving a small quantity of herbal cannabis.  In case this is a possession charge would normally lead to possibly a sentence of a fine.  In his case, given his young age, what I will do is impose a sentence of 14 days’ imprisonment to be served concurrently with his existing sentence.   

19.  So the sentence on both defendants is one of 22 months’ imprisonment.