HKSAR v. JIBRIIL SAMATAR DIIREYE

DCCC 308/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 308 OF 2015

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Reasons for Sentence

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1.  Originally, the defendant was charged with one count of robbery. Upon plea bargaining, the prosecution now applied to amend the charge sheet and the defendant was charged with one each count of AOABH and theft. Leave was granted. The defendant pleaded guilty to these two charges.

2.  The facts of the case are straightforward.  The victim was a prostitute and stayed in a “one-woman brothel” in a building situated at Castle Peak Road.  On 5 March 2015, at about 9:10 am, the defendant went to the victim’s brothel for sexual service.  The defendant had only about $200 with him.  The victim agreed to provide masturbation service for the defendant, and the defendant fondled the victim who was naked at the time.

3.  After a short while, the defendant asked to have sex but the victim declined.  The victim took $100 from the defendant and asked the defendant to leave.  The defendant refused to leave and even demanded a full refund of $200.  They had an argument.  The victim used his phone to call the police and left the door of the flat open. 

4.  Meanwhile, the defendant opened the drawer under the victim’s bed.  The victim held the defendant back, and in the course of the argument, the defendant tried to look for money.  The defendant stole the victim’s smartphone with the phone case from the victim’s hand.  The victim resisted by pulling the defendant’s upper garment and shouting “Help”.  The victim kept tugging at the defendant’s shirt.  The defendant and the victim struggled, and the defendant struck the victim’s face and pushed her, causing the victim to fall on the steps in front of the bathroom.  The victim’s waist was injured, and she lost grasp of the defendant who took her phone and fled. 

5.  The victim’s neighbour heard the noise, and together with the victim, traced after the defendant who threw away the victim’s phone on the staircase.  The defendant was intercepted on the ground floor and brought back to the brothel.  Defendant offered to return $100 to settle the dispute. 

6.  Later, the defendant was arrested by the police.  Under caution, the defendant said that he came to Hong Kong to seek political asylum. 

7.  The victim was later medically examined and found to have:

(1) tenderness at her head and left knee;

(2) redness at her trunk;

(3) bruises at her right upper arm;

(4) swelling, haematoma at her face; and

(5) abrasion at her back and left ankle.

Mitigation

8.  The defendant is of Somalia nationality and aged 21.  He came to Hong Kong in 2012 to seek asylum.  He claimed that he did not have any travel documents with him which were in the hands of his agent. Defendant now has the refugee status and has attended the first interview organised by the UNHCR.  He expected to be able to get resettlement soon.  The defendant was learning English organised by the UNHCR. 

9.  It was submitted that the defendant is remorseful and that the dispute with the victim was mainly due to language barrier.  The injury inflicted on the victim can be said to be substantial but the victim suffered no permanent injury.  The defence tendered a letter from UNHCR to confirm the defendant’s status and the plea for leniency to the defendant as a prison sentence would seriously jeopardise his resettlement prospect (Exhibit MFI-1).  The defendant also tendered his mitigation letter. 

10.  The smartphone was not damaged.  It was further submitted that the offences were committed by the defendant out of his momentary impulse and loss of temper.  The defendant had a clear record in Hong Kong.

Sentence

11.  Being a prostitute is a vulnerable occupation and is easy to be subject to violence and/or health risks.  In this case, the facts suggested that there was a case for assault with intent to rob and/or robbery.  It was only because of plea bargaining that the defendant now was convicted of one each count of AOABH and theft.

12.  That said, I have to rely on the Summary of Facts that were agreed to by the defendant as the basis for sentence.  I have to consider the circumstances in which the offences were committed.  The defendant went to seek sex service from a prostitute.  At a later stage, the defendant wanted to have sexual intercourse with the prostitute but was rejected.  The defendant searched the drawer and eventually snatched the phone from the victim.  The victim did suffer injuries while they had an argument and a struggle. 

13.  In my view, the defendant, who is now aged 21 and came to Hong Kong from Somalia in June 2012, is lucky that the prosecution agreed to amend the charges, and it is a wise decision for him to plead to the amended charges.  Otherwise, given the strong evidence against him, the defendant would certainly have to face a longer sentence after trial.

14.  As a reference, for an unarmed robbery, the defendant might have to face a prison term of 3 years to 4 years. The defendant should be grateful that he was enjoying subsidy and allowances from the UN and the Government of Hong Kong.  I do not believe that all his travel or identity documents were kept by his agent.  Otherwise, how could the defendant board the flight from Somalia to Hong Kong?

15.  In his mitigation letter, the defendant said that he had been in Hong Kong for three years and considered his character very nice.  He was just out of character on the offence day.  That is 5 March 2015.  He felt remorseful and apologised to the victim and the Government of Hong Kong.  He learnt a lesson and will control his temper in future.  He asked for sympathy from this court as the UNHCR cannot resettle the defendant if the defendant received a hard sentence.

16.  In the present case, I consider that the victim did not suffer any permanent injuries and her smartphone was recovered.  I do not regard the defendant’s refugee status as an aggravating factor.

17.  As I said, I have to sentence the defendant based on the Agreed Facts.  In the circumstances, for the 1st count of AOABH, I will use 9 months as the starting point, and with the defendant’s plea, I reduce it to 6 months.

18.  For the 2nd count of theft, it was not a simple snatching incident.  In the case of HKSAR v Yeung Kam Tung, CACC 427 of 2012, which is a case concerning snatching of a smartphone, the Court of Appeal said it was proper to use a starting point of 15 months.  In that case, no violence was applied on the victim.

19.  In the present case, the victim did suffer injuries and her phone was stolen by the defendant, even though eventually the phone was recovered.  I will adopt a starting point of 18 months, and with his plea, I reduce the sentence to 12 months. 

20.  I am lenient to the defendant and order that the two sentences be served concurrently.