HKSAR v. ISLAM SIRAZUL

DCCC 3/2023

[2024] HKDC 904

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3 OF 2023

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REASONS FOR SENTENCE

The defendant was convicted of a charge of "Attempted robbery" (Charge 1)  and a charge of "Resisting a police officer in the due execution of his duty" (Charge 2)  after trial.

2.  I have summarized the evidence in my Reasons for Verdict.  In gist, shortly after 10:00 p.m. on 5 September 2022, Madam Ouyang (PW1), a street cleaner, was on duty in uniform working at Chun Yin Square Playground in Yuen Long ("the Playground").  She was standing near a park bench and had just taken out her cell phone holding it in her hand.  Suddenly, the defendant ran towards her and tried to snatch her cell phone.  PW1 held onto her cell phone tightly so the defendant was unable to snatch it.  PW1 then ran towards an exit of the Playground. The defendant chased after PW1 and used both hands to press her from behind trying to snatch her cell phone.  PW1 fell onto the ground but was still holding onto her cell phone tightly.  After PW1 had fallen onto the ground, the defendant was on top of her trying to snatch her cell phone but failed.  The defendant fled when 2 young fellas came to offer assistance to PW1.  This is Charge 1.

3.  PC 20858 (PW2)  and PC 16524 (PW3)  were on patrol car duty in plainclothes.  About 10:35 p.m. in the same evening, they were sweeping the nearby area on foot to look for the defendant.  In a back alley at Hi Lee Path, they saw the defendant (whose appearance matched the description of the alleged robber).  PW2 revealed his police identity by showing his warrant card and told the defendant that he was police in English and Punti.  PW2 then asked the defendant in simple English if he had been to Chun Yin Square.  He did not reply.  PW2 asked the same question in Punti, the defendant replied in English "Yes".  PW2 asked him what he did at Chun Yin Square, the defendant appeared to be nervous and wanted to leave.  He replied in Punti he did not know and shook his head.  At that time, PC 24540 and PW1 came to the back alley.  PW2 was informed that the victim had just identified the defendant as the culprit who tried to snatch her phone.  PW2 confirmed with PW1 that the defendant was the culprit.  PW2 declared arrest on the defendant for "Robbery" in Punti.  As PW2 was trying to hold onto the defendant, he resisted by moving his 4 limbs to free himself.  PW2 took out his handcuffs trying to control the defendant but he was still struggling and refusing to put his hands behind.  PW2 tried to use both hands to grab the defendant's arms but he kept shaking his arms.  PW2 and PW3 pressed the defendant on the ground and used their bodies to press against him.  The defendant tried to get up and put up a struggle.  PW2 warned him in both Punti and English "I'm warning you.  Don't Move."  PW2 finally managed to cuff the defendant's hands at his back.  This is Charge 2.

Mitigation & Sentence

4.  The defendant is 42 and has a clear record in Hong Kong. According to his evidence, he is married with 4 children. He came to Hong Kong from Bangladesh in 2013 and has remained here as a Form 8 holder. His wife and children are all in Bangladesh.

5.  In mitigation, defence counsel Mr. Whitehouse submitted that the defendant has managed to stay trouble free in the past 10 odd years in Hong Kong. Furthermore, Mr. Whitehouse stressed that Charge 1 was an attempted robbery with no weapons displayed or used; it was only "a step up from snatching". Regarding Charge 2, Mr. Whitehouse submitted that the defendant merely resisted the arrest; no police officers were injured.

6. I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise)  to seek refuge in another country. I understand that the verification of a non-refoulement claim can be a lengthy process. I also appreciate that disappointment and frustration may result from the unknown period of waiting. Be that as it may, Form 8 holders must behave themselves and obey the law in return for the hospitality extended to them by Hong Kong. As a Form 8 holder, although the defendant is unable to earn any income, his basic needs such as housing and food are provided for by the government and/or NGOs.

7. I have borne in mind the principles set out by the Court of Appeal on sentencing criminals with Form 8 holder status[1]. By its nature as well as the circumstances of its commission, Charge 1 in the present case clearly has a serious detrimental effect on the community at large.

8. Although PW1 did not lose her cell phone, its screen was cracked and PW1 had abrasion on her right knee and right palm. A clear message must be conveyed to the general public that robbery is a serious crime and that the offenders would most certainly be punished by long-term imprisonment. Mr. Whitehouse has helpfully drawn my attention to the Court of Appeal's decision in HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563. For Charge 1, I consider 39 months' imprisonment to be the appropriate starting point. I would increase the starting point to 43 months because of the defendant's Form 8 holder status. Since he was convicted after trial, no guilty plea discount can be given. Normally, having a clear record has little significance for offenders who are Form 8 holders. On the other hand, the defendant has behaved himself for 11 years since his arrival at Hong Kong. I would grant him a nominal discount of 1 month for his clear record. I sentence the defendant to 42 months' imprisonment for Charge 1.

9. For Charge 2, I accept that the level of resistance involved was not high. I adopt a starting point of 4 weeks' imprisonment[2]. Since the defendant was convicted after trial, no guilty plea discount can be given. I would grant him a discount of 1 week for his clear record. I sentence the defendant to 3 weeks' imprisonment for this charge.

10. Charges 1 and 2 are separate and distinct. Had the defendant cooperated with PW2, Charge 2 could have been completely avoided. Notwithstanding the totality principle, I order the sentence in Charge 2 to run consecutive to Charge 1. In other words, the total prison term for both charges is 42 months and 3 weeks.