HKSAR v. SINGH POPINDER AND OTHERS

HCCC 290/2019

[2020] HKCFI 2915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 290 OF 2019

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REASONS FOR SENTENCE

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1.  There are five defendants in this case. They face a different combination of counts at trial. D1, 2, 4 and 5 were convicted after trial of one count of robbery (Count 1). D5 was convicted of one count of theft (Count 2). D3, 4 and 5 were convicted of the lesser offence of theft in relation to Count 4.

SUMMARY OF FACTS

Count 1: Robbery against D1, 2, 4 and 5 and Count 2: Theft against D5

2.  A brief outline of the testimony of the victim, Indian national and Form 8 holder Samat Sumit Singh, in the Count 1 robbery is that, he on the morning of 18 September 2018 went to the pavilion in a playground in Yuen Long with a friend.  They chatted for a while and then a group of six men approached him.

3.  Samat Sumit Singh said he immediately recognized five of the group as people whom he already knew as Sunny, Mangu, Waqasa, Sabu and Bedi.  Except for Bedi, Samat Sumit Singh would later identify them as D1, D4, D5 and D2 in court, respectively, being the four named defendants in Count 1.

4.  D5 called out to Samat Sumit Singh and D4 asked him for money.  Samat Sumit Singh said he did not have any.  Then D5 asked Samat Sumit Singh to give him his phone.  Samat Sumit Singh gave him his phone.  D5 right away put the phone into his own bag.  Samat Sumit Singh asked for it back but D5 refused and he never got it back from D5.

5.  This taking of the phone is dealt with in the separate count of the theft against D5 alone in Count 2 because it is the prosecution’s case that D5 stole the phone on his own without any of the other defendants being part of this theft.

6.  When D5 was putting the phone in his own bag, D1 picked up a stick that was lying around and hit Samat Sumit Singh once on the back and he fell to the ground.  D1 hit him a few more times with the stick on the back after he had fallen down.

7.  After D1 had hit Samat Sumit Singh with the stick, the group of people started to punch him.  He tried to protect himself by turning on his side.  While he was on his side and still on the ground, he saw D4 took his wallet from his back trousers pocket.  Inside the wallet was cash of $450, an Octopus card and a food bank card.  They are the property listed as stolen in the robbery in Count 1.

8.  After D4 had taken the wallet, the group of people punched and kicked Samat Sumit Singh while he was lying on the ground. All six of them hit him.  Samat Sumit Singh claimed that D2 had punched him, but he could not remember what else D2 did to him because he was being hit and he could not remember much.

9.  The beating stopped after about 10 minutes from D5 taking his phone and then the defendants left. Samat Sumit Singh was taken to hospital after he reported the matter at the police station.

10.  He did suffer some injuries as a result of the assault, but they were relatively minor and he was discharged from hospital on the same day.

11.  It is admitted that Samat Sumit Singh had later on in four different identification parades held on three different days in October and November 2018 identified D1, D2, D4 and D5 as people who were involved in the robbery.

COUNT 4: THEFT AGAINST D3, 4 AND 5

12.  D3, 4 and 5 were charged with burglary in Count 4.

13.  It was the prosecution’s case that D3, D4 and D5 entered a premises on the night of 26 September 2018 as trespassers, and that they stole a television set, one Octopus card, one food bank card and cash of $500 having so entered.

14.  The jury found them each not guilty of burglary but guilty of the lesser offence of theft.

15.  By inference, the jury found that the prosecution had failed to prove they had each entered as a trespasser and thus found them not guilty of burglary.

16.  By their verdict, the jury found that D3, D4 and D5 had stolen the property in a joint enterprise.

17.  The evidence that the prosecution relied on in relation to the burglary came only from witness Mr Mishra Sarvjeet, an Indian national and a Form 8 holder.

18.  He said 4 people came to his home at house No 18A at around 11:30pm on the night of 26 September 2018.  Among them were D3, D4 and D5.  It was Mishra’s co‑tenant Mr Neeta Singh who opened the door and let them in.

19.  After the four people came in, D4 ate the food that the witness and Neeta had left over from dinner.  One of the men asked Neeta about his gold chain.  Neeta said he had sold it and then the man and D5 took some money from Neeta.  Neeta ran away when he had the chance, while Mishra stayed because he could not run with his injured toes.  D3 and D4 stayed in the house and watched over Mishra.

20.  After some time, the other man and D5 returned and they searched Neeta’s cabinet for the gold chain but could not find it.  D5 took Mishra’s wallet and some cash inside.  D5 also took the television off the wall.  The four men took the undergarment and make-up of Neeta’s girlfriend that they found in a cabinet and put them into a backpack that belonged to Neeta.  They then took the television and left No 18A at around 2:30am on 27 September 2018.

PREVIOUS CONVICTIONS

21.  D1, D2 and D5 are of previously clear record.

22.  D3 has seven previous convictions from five court appearances.  Six of those were for shoplifting.  D3’s last conviction was on 11 June 2018 when he was sentenced to two months’ imprisonment upon conviction for the offence of ‘assault occasioning actual bodily harm’.  D3 was last released from prison on 13 July 2018.  D3, therefore, committed the present theft in Count 4 about two months after his release.  I find that this is an aggravating factor and that his sentence should be enhanced on this basis.  This will be dealt with later on.

23.  D4 has one previous conviction for attempted theft when he was fined $1,500 on 8 February 2017.  Given the minor nature of this one conviction as evidenced by the sentence, I do not find D4 a repeat offender and will not enhance his sentence on the basis of his previous conviction.

PERSONAL BACKGROUND

24.  D1 was born in India and is 30.  He was educated up to college level.  He entered Hong Kong legally in 2013 and claimed asylum thereafter.  He got married whilst his claim was being processed and has a three‑year‑old son.  I am told that his intention is to return to India with his wife and son upon release since the matters that had caused him to flee India had been resolved.

25.  D2 is 28 years old and was born in India. He is married and was educated up to secondary 5 level.  He came to Hong Kong from India in 2014 and got married to a fellow asylum seeker here in 2015.  He, his wife and their four‑year‑old son all live in Hong Kong.

26.  D3 was born in India and is now aged 30.  He arrived in Hong Kong on 11 January 2015 and had sought asylum thereafter.

27.  D4 was born in India and is aged 31.  He arrived in Hong Kong in 2014 and is a Form 8 holder.  He was educated up to ‘O’ Level and is in good health.

28.  D5 was born in Pakistan and is aged 35.  He is single and a Form 8 holder.

MITIGATION

Count 1: Robbery by D1, D2, D4 and D5

29.  The general common theme of mitigation put forward on behalf of D1, D2, D4 and D5 in relation to their sentence for the Count 1 robbery is that the robbery was not planned, that only a piece of wood was used as weapon, that the victim suffered only minor injuries and that the property stolen was of a low value.

Count 2: Theft by D5

30.  Similarly, the property stolen by D5 was only one phone, which the victim had handed over to D5 himself.  Given the circumstances of the case, Mr Arthur submitted that part of this sentence should be ordered to run concurrently to the sentence in Count 1.

Count 4: Lesser offence of theft by D3, D4 and D5

31.  It was submitted in mitigation that the stolen property value was low, that there is no evidence of premeditation or planning and that the most valuable stolen property, being the television set, had been recovered.

SENTENCE

Count 1: Robbery

32.  The maximum sentence on conviction upon indictment for the offence of robbery is that of life imprisonment.

33.  Counsel for the defendants referred to various cases to assist me in my sentencing.  I find the following two cases particularly relevant and helpful.

34.  In the case of HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378, the facts as found by the trial judge and quoted by the Court of Appeal are as follows.

“2. ... Around midday on ... 17 February this year [2002], a man and his wife were out walking near Lion Rock. They are a middle-aged couple. Whilst they were walking the two Accused, together with two other males, encountered them.

3. The four males rushed towards them and the 2nd Accused declared that it was a robbery. I am satisfied that the 2^nd Accused took hold of the male. Together with another person who has not been arrested, he relieved the male of certain of his possessions. Those included an amount of $180 in cash as well as a wristwatch.

4. ... Whilst the 2^nd Accused and the other male were dealing with PW1, the 1^st Accused and the fourth male involved themselves with PW1's wife, PW2.

5. I accepted her evidence that the 1^st Accused had held onto her arm. No property was removed from her possession. The four males, including the two Accused before the court, fled. ....”

35.  For the purpose of my consideration, I refer to the following two paragraphs of the judgment:

“15. … We accept that a robbery involving more than one culprit should be viewed more seriously by the courts than one involving only one culprit, because the threat and pressure exerted by a number of robbers on the victim are obviously more serious than those exerted by a lone robber. …

16. In the circumstances, we are of the view that a proper starting point, taking into account the robbery in our case being an unarmed one, should as a matter of principle be lower than that for an armed robbery of the kind envisaged in Mo Kwong-sang. However, as it was committed by the two applicants and two other young males at large, the starting point should be four years instead of the five years as adopted by the judge.”

36.  Ting Chiu is a case where no weapons were used at all and the victim did not suffer any injury.  A starting point of four years’ imprisonment was considered appropriate by the Court of Appeal.

37.  In the case of Secretary for Justice v Au Chi Hang and Others [2006] 2 HKLRD 310, the 3^rd respondent pleaded guilty to three counts of robbery and was sentenced to a total of three years’ imprisonment at trial.  The Secretary for Justice applied to review his sentence.

38.  The facts of that case are these.

Count 1

39.  The 14 and 15 years old victims were playing basketball at a playground on Choi Hung Road.  At around 10pm, four men showed up and started yelling and running at them.  Fearing for their safety, they ran.  The four men gave chase and caught up and cornered them in a back alley after five minutes.  Two of the men kept a lookout at the entries to the alley, one of the remaining one asked the victims if they had any money.  After a while, one of the men said to beat them up, while another countered with a suggestion to first search their belongings.  Feeling scared, one of the victims opened his bag for the man to search.  They took the victim’s Octopus card and then left.  No physical violence was used on the victim, and he was not injured.

Count 2

40.  Not long after the robbery in Count 1 had taken place, on the same night at around 11:30pm, a Mr Cheung was walking along the street in Mongkok when four men stopped him.  They asked the victim if he had any money, and said that their big brother had been arrested and they needed money to bail him out.  After the victim said he did not have any money, the four men requested him to hand over his mobile phone.

41.  The 3^rd respondent, one of the four men, picked up a three‑foot long wooden pole from a nearby garbage dump and poised as if he was going to hit the victim with it.  In fear, the victim took out his phone from his bag and handed it over to the four men.  No one was injured in the incident.

Count 3

42.  About 3 hours and 15 minutes later, a different victim ran into the same four men.  They were not in possession of any weapons at that time.  One of them asked the victim if he had any money and demanded him to hand over the money and his mobile phone.  They said their big brother needed money and asked the victim to help out.

43.  In fear, the victim handed over $100 to one of the men.  When another man asked for his phone, the victim ran, but was caught up after 10‑odd steps.

44.  The 1^st respondent picked up a one odd foot long broom stick lying on the street, while another man picked up an iron pipe of a similar length.  The two men used those as weapons to hit the victim while they gave chase.  The victim used his hands to try to protect himself.  When the victim stopped running, the men also stopped attacking him.

45.  The victim then handed over his phone but asked to keep the SIM card because he had lots of phone numbers saved inside.  The 2^nd respondent said they needed money in a hurry, suggested the victim to look for him at the end of the month or to call him and then he will return the phone to the victim.  The 2^nd respondent then gave his own phone number to the victim, who immediately called it and the 2^nd respondent’s phone did ring.  Police investigation revealed that it was the number that the 2^nd respondent had all along been using.  The victim’s phone was worth around $2,000.

Injuries suffered by the victim

46.  As a result of being attacked by the two men, the victim’s right hand near his wrist had two half‑inch long injuries, with another 1.5‑inch long injury near his thumb.  His right arm and wrist were injured and bled.  The victim did not consider the injuries serious and did not go to the hospital for treatment.

Sentencing considerations

47.  The sentencing judge found that the weapons used in Count 3 were not ‘dangerous weapons’.  The Court of Appeal felt that, without the advantage of hearing the evidence at trial first hand, it would be difficult for them to refute the trial judge’s finding, and they decided not to interfere with this finding.  Since the trial judge found the weapons not to be dangerous, the Court found that she was right not to adopt the Mo Kwong Sang guidelines and the starting points did not have to be five years or above.

48.  The Court then proceeded to consider previous cases, including Ting Chiu, and observed that no weapons were used there and that the victim did not suffer any injuries as a result of the robbery. The four‑year starting point adopted took into consideration that the robbery was carried out by four people.

49.  The Court found that, in relation to Count 3, where there were four accomplice committing the robbery in the early hours, with the use of weapons and violence, with two of the respondents chasing the victim causing him to be injured, the proper starting point should have been that of five years’ imprisonment.  The three‑year starting point adopted by the trial judge was found to be clearly inadequate.

50.  In relation to Count 2 in Au Chi Hang, where the robbery was committed by four people around midnight, with the 3^rd respondent holding a three‑foot long wooden pole poised to hit the victim with it, but not actually hitting him with it.  Although the victim did not suffer any injury as a result, the Court found that the brandishing of the weapon to force the victim to succumb was a matter for consideration, and the proper starting point should have been four years’ imprisonment.

51.  In relation to Count 1 in Au Chi Hang, although no weapons were brandished, the Court found that the degree of fear the 14 and 15‑year‑old boys were subjected to could not have been light.  They found that a proper starting point should have been two and a half year’s imprisonment.

52.  Taking into consideration the totality principle, the fact that the 3^rd respondent had committed the robberies within a few hours, with an escalating use of violence, first surrounding the young students, then brandishing weapons, lastly using actual force on the victim, although the youngest of the accomplice, the Court found that a proper overall sentence should have been seven years’ imprisonment.

STARTING POINTS IN THE PRESENT CASE

Count 1: Robbery: D1, D2, D4 and D5

53.  First of all, given the fact that the roles of the four defendants were more or less the same with no one standing out as the leader of the gang, I find that I should adopt the same starting point for all four of them.

54.  In the present case, the robbery was committed by at least four people that took place in a public place in broad daylight.  A wooden pole was used as weapon to attack Samat Sumit Singh by one of them in this joint enterprise.  He did suffer injuries on his body but they were not serious, suggesting that the force used in the assault was also relatively minor.  I find that the facts of the present robbery is more serious than the one in Ting Chiu, but slightly less serious than the one in Count 3 of Au Chi Hang.

55.  Bearing in mind the use of a non-dangerous weapon, the robbery being committed by a gang, and the cases referred to above, I find that a proper starting point for each of the four defendants is that of four years and six months’ imprisonment in relation to Count 1.

Aggravating factor

Form 8 holder: D1, D2, D4 and D5 in relation to Count 1

56.  All four defendants were Form 8 recognizance holder at the time of their commission of the robbery in Count 1.

57.  In the case of HKSAR v Singh Gursevak [2019] HKCA 179; CACC 139/2018, the Court of Appeal confirmed that Form 8 recognizance holders committing a criminal offence in Hong Kong is an aggravating factor.  As to the amount of enhancement, the Court said the following:

“43. Of course, the amount of the enhancement will reflect the court’s assessment of the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong. Making this assessment will entail the court having regard to the nature of the offence, the circumstances of its commission, its actual impact on the victim, its potential impact on the wider Hong Kong community and finally its potential impact on Hong Kong’s reputation.

44. Clearly, the more serious the impact of the crime in the adverse way required by the authorities, the greater will be the amount of the enhancement. If the enhancement is to have a deterrent effect then it will usually be at least 6 months but it can, obviously, be greater than this amount and there is no reason why it cannot be greater than 18 months. We do not wish to set an upper limit to the amount of the enhancement other than to make the obvious comments that it should not be disproportionate to the starting point and should not result in a final starting point that is excessive for the seriousness of the crime that has been committed. Finally, the sentencing court must always have regard to the totality principle in order to ensure that the sentence it imposes is a just and balanced one.” [Emphasis added]

58.  I find that given the circumstances of the robbery, and bearing in mind the starting point adopted, for the aggravating factor of the defendants being Form 8 recognizance holders at the time of their commission of the offence, there should be an enhancement of six months’ imprisonment in relation to D1, D2, D4 and D5 concerning their sentence for Count 1.

59.  D1, D2, D4 and D5 are, therefore, each sentenced to five years’ imprisonment in relation to the Count 1 robbery.  There are no mitigating factors to reduce their sentences.

Count 2: Theft: D5

60.  The theft of the phone by D5 did not involve violence and was committed by D5 alone, which is the basis that the prosecution had chosen to frame the charge.

61.  For this theft, I find that the starting point should be slightly below that of a snatching case, which is customarily 12 months, since it was Samat Sumit Singh’s evidence that he handed over the phone voluntarily when D5 first asked for the phone from him.

62.  I will adopt a starting point of nine months’ imprisonment, and enhance it by two months for the aggravating factor of D5 being a Form 8 recognizance holder committing a criminal offence. This lower enhancement is to ensure that the sentence on Count 2 remains fair and balanced.

63.  D5 is sentenced to 11 months’ imprisonment for Count 2.  Since D5 will also be sentenced for Count 4, I will deal with the totality of his sentences later on.

Count 4: Lesser offence of theft: D3, D4 and D5

64.  Given the circumstances of the commission of the theft, the relatively low value of the property stolen, but given that the theft was committed by three people inside the home of the victims late at night, I find that a proper starting point for D3, D4 and D5 on Count 4 should be nine months’ imprisonment.

Aggravating factors

Form 8 holders: D3, D4 and D5: Count 4

65.  For the aggravating factor of each of the defendant committing the offence while a Form 8 recognizance holder, I will enhance their individual sentence by two months each.  Again, this lower enhancement is to ensure that the resulting sentence remains fair and balanced, considering the lower starting point adopted.

Committed offence shortly after release from imprisonment: D3

66.  In relation to D3, as mentioned above when setting out D3’s previous convictions, D3 committed the offence in Count 4 shortly after he had served an earlier sentence for an assault occasioning actual bodily harm.  For this aggravating factor, I will further enhance his sentence by one month.

67.  D3 is, therefore, sentenced to (9+2+1) 12 months’ imprisonment after enhancement, for his conviction on the lesser offence of theft in Count 4.  There are no mitigating factors to reduce his sentence.

68.  D4 and D5 are each sentenced to 11 months’ imprisonment for their conviction on the lesser offence of theft in Count 4.

TOTALITY IN RELATION TO D4 AND D5

D4

Counts 1 and 4

69.  Taking a step back and applying the totality principle in relation to D4, bearing in mind that D4 had committed the theft within days of his commission of the robbery in Count 1, I order that seven months of the imprisonment term of D4 for Count 4 be served consecutively and the balance concurrently with his sentence of five years for Count 1.  The final overall sentence for D4 is, therefore, five years and seven months’ imprisonment for Counts 1 and 4.

D5

Counts 1 and 2

70.  Taking a step back and applying the totality principle in relation to D5, bearing in mind that D5 had committed the theft in Count 2 almost at the same time he committed the robbery in Count 1, I order that D5’s sentences for Counts 1 and 2 to be served wholly concurrently.

Count 4

71.  As for the sentence in Count 4, still applying the totality principle, I take into consideration that D5 committed the Count 4 theft within days of his commission of the robbery in Count 1, and I order that seven months of D5’s sentence for Count 4 be served consecutively to his sentence of five years for Count 1 and 2.  The final overall sentence for D5 is, therefore, five years and seven months’ imprisonment for Counts 1, 2 and 4.

SUMMARY

72.  D1 is sentenced to five years’ imprisonment for Count 1.

73.  D2 is sentenced to five years’ imprisonment for Count 1.

74.  D3 is sentenced to 12 months’ imprisonment for Count 4.

75.  D4 is sentenced to five years and seven months’ imprisonment for Counts 1 and 4.

76.  D5 is sentenced to five years and seven months’ imprisonment for Counts 1, 2 and 4.