HKSAR v. ANEES KHIYAM

bjbj cacc 326/2013 in the high court of the hong kong special administrative region court of appeal criminal appeal no. 326 of 2013 (on appeal from DCCC NO. 1184 of 2012)

BETWEEN

HKSAR Respondent

ANEES KHIYAM Applicant Before: Hon Macrae JA in Court Date of Hearing: 11 December 2013 Date of Judgment: 11 December 2013

J U D G M E N T The applicant pleaded guilty to a single charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210. He was sentenced by HH Judge Dufton in the District Court to a term of 3 years and four months imprisonment, which was ordered to be served wholly consecutively to an existing unrelated term of three months imprisonment for an offence of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap 212, committed upon a fellow prisoner. He applies for leave to appeal his sentence. The facts On 16 July 2012 at around 9:25 am, Mr Chan Fuk-kuen (Mr Chan), the manager of a grocery shop, went to Wing Shing Exchange Co Ltd (Wing Shing) in Prince Edward Road in order to make a cash transfer of HK$450,000. To that end, he was carrying HK$450,000 in cash in a bag. When he was at the doorway of Wing Shing, a South Asian male suddenly came up behind him and grabbed the bag containing the cash. A struggle ensued, which resulted in Mr Chan being pulled into a nearby alley where he was set upon by two more South Asian males and pushed to the ground. One of the three males then picked up about HK$10,000 in cash which had fallen from the bag, and they all fled the scene. Mr Chan sustained an abrasion to his right knee during the struggle. Closed circuit television cameras later revealed a fourth South Asian male

coming out of the alley with the other three. The applicant was arrested three days later. Under caution, he admitted that he had earlier received a telephone call at home from someone who asked him to go down and do some work . Accordingly, he went downstairs where he met three other males. He was instructed to lie in wait for a certain Chinese male at a particular place, beat him up and take his money. He then described how, on later seeing the targeted Chinese male, one of them attempted to snatch his bag, whereupon the Chinese male fell down and some money spilled from his bag. The applicant admitted picking up about HK$1000 before all four of them ran away. He claimed that he was paid $200 for his part in the robbery. The applicant is a 23-year-old torture claimant with no source of income. He is, however, allowed to remain at large in Hong Kong by virtue of a recognisance issued by the Director of Immigration. On 29th of May 2012, he was made the subject of a bind over for 24 months. The assault occasioning actual bodily harm offence took place on 15 August 2013, over a year after the robbery. Reasons for Sentence The judge acknowledged that, while the starting point for an unarmed robbery without the use of a weapon was generally no more than 4 years imprisonment , there were cases where the courts had upheld higher starting points. In the present case, he found the

following aggravating features which justified an increase of the starting point to 5 years imprisonment: (i) at least three robbers were involved; (ii) violence was used; (iii) HK$10,000 was stolen, although considerably more was targeted; (iv) the robbery was evidently carefully planned; and (v) customers of exchange shops are a particularly vulnerable class of persons, attacks on whom must be especially deterred. The applicant s grounds of appeal The applicant complains that the starting point was manifestly excessive, given that the offence concerned was an unarmed robbery. He has also referred to what is suggested are comparable cases in which lower sentences had been passed for similar offences. Consideration None of the cases referred to by the applicant bear any resemblance to the facts of this case. On the other hand, Ms Yu, in her full and helpful written arguments, has drawn my attention to two authorities, namely HKSAR v Yiu Chi Ming (unrep) CACC 472/2011 and HKSAR v Wong Ching Chiu [2007] HKLRT 287, in which the facts have some obvious similarities with the present case, yet starting points of 6 years and 5 years imprisonment respectively were approved. There were clearly aggravating features in this case, which well justified an increase on what would have been the basic starting point for unarmed robbery by a single defendant; perhaps (i), (iv) and (v) being the

more significant factors in this particular case. So far as (v) is concerned, although perhaps a little unusual, it finds resonance with the remarks of the Court about banks and their customers in Yiu Chi Ming, at para 65: Bank robberies are particularly serious offences because banks are in possession of large amounts of cash, thus offering great temptation to potential robbers. Whilst D2 and his accomplices did not actually target the bank, the same reasoning applies as people who withdraw large sums of money from the bank are vulnerable and they, too, offer great temptation to potential robbers. We were satisfied that robberies of victims who have just left the bank deserve greater deterrence. These comments might well be thought to apply with equal force to exchange shops where customers will, by the very nature of the business, be depositing and obtaining sometimes large amounts of cash. In considering the aggravating features in the present case, the judge might also have borne in mind the sentiments, which have found recent expression by the Court of Appeal, in HKSAR v Sandagdorj Altankhuyag and another (unrep) CACC 45/2013, at paras 20-21: The second matter which stands out from the facts of this case concerns the 2nd appellant. He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by

virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal. Where someone in the position of the 2nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime. However, the Court added this caution, at para 22: We do not say that someone sharing the 2nd appellant s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong s reputation. Conclusion Neither the 5 year starting point adopted by the judge nor the fact that the sentence was ordered to run consecutively to a wholly unrelated sentence for an offence later committed in different circumstances and at a different time is open to criticism. The application for leave is refused and the applicant is duly advised of his right to renew his application to the Court of Appeal, and the consequences of so doing. (Andrew Macrae) Justice of Appeal The applicant appeared in person Ms Margaret K W Yu SPP, of the Department of Justice, for the respondent

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