HKSAR v. CHAN KA WING AND ANOTHER

DCCC1327/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1327 OF 2011

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendants, you have each pleaded guilty to a single offence of robbery, contrary to section 10 of the Theft Ordinance, Cap.210. You admitted the brief facts and I convicted you.

2.  The facts are as follows.  On 6 June of last year, Lau Kwun-yin, PW1, a male of 14 years of age, was in McDonald’s at Ka Lim Lau, Ka Wai Chuen, Hung Hom.  At that time he was with friends. 

3.  At about 1.30 am, D2, you approached and sat at his table.  D2, you repeatedly demanded PW1 went out for a chat but PW1 refused.  After about 15 minutes, you used your right hand to slap the left side of his face and your right elbow to hit his back.

4.  You then left and returned with D1.  Together you repeatedly demanded that PW1 go outside for a chat but PW1 refused.  D1, you then hit PW1’s back with your right elbow and right knee.  You demanded his wallet and PW1 handed it over.  From that wallet you took out three student cards, one ATM card and an Octopus card.  D2, you held PW1’s hands while you, D1, searched him.  When you tried to take his mobile PW1 resisted you, D1.  You both then left the restaurant and the case along with the descriptions was reported to police.

5.  At about 2030 hours on that same day, PC53271, PW2, intercepted you, D1, outside Ka Pong Lau, Ka Wai Chuen.  Under caution, you admitted being in the restaurant at 1.30 am that day and hitting PW1.  You claimed that D2 took the ATM and Octopus cards.  Under arrest and further caution you admitted robbery with D2.  You said it was because you had no money.

6.  In a subsequent video recorded interview you said the following:

(1) You were waiting outside the restaurant for D2. Upon D2’s request, you then entered and you both hit PW1, asking if he had any money. When PW1 said he did not, you both demanded his wallet and took his student cards, ATM card and Octopus card.

(2) You searched PW1 for money. Finding none, you then both left.

7.  On 23 August last, DPC58433 arrested and cautioned you, D2.  You admitted that you had robbed PW1 as you had no money.

8.  In your subsequent video recorded interview, you admitted the following:

(1) You were unemployed at the time and had no money. Seeing PW1 in the restaurant, you tried to get money from him.

(2) You and D1 hit PW1 several times.

(3) You discarded the stolen property.

9.  D1, you admitted to two convictions, both of which were subsequent to the commission of the present offence, therefore at the time of this offence you were of clear record.

10.  D2, you admitted to 11 previous convictions, two of which were in fact subsequent.

11.  In view of your age, D1, I called for a Probation Officer’s Background Report prior to sentencing.  Two weeks ago that was presented to me.  To the extent that it portrayed you as reacting positively and satisfactorily to the current probation orders, it could be said to be supportive.  On this basis Mr Wong sought to argue in favour of continuing probation and not deprive you of your liberty. 

12.  Whilst at that time expressing fundamental doubts and reservations, given the seriousness of the present charge and making it clear I reserved to myself the right to sentence in any way I felt to be correct and just no matter what was recommended, I did call for a Probation Officer’s Report.  At the same time I asked for and called for a report as to suitability for Training Centre. 

13.  Both reports are before me today.  The latter report, that is the Training Centre Report, makes it clear you are not deemed to be suitable as you are considered to be still drug-dependent.

14.  Whilst awaiting the reports, it also gave Mr Wong the opportunity to seek out sentencing precedents if he was able to do so in order to pursue a submission in favour of probation.

15.  I do note that the Probation Officer’s Report does find you suitable and does recommend a further Probation Order.

16.  Mr Wong entered mitigation on behalf of both of you.

17.  In respect of you, first of all, D1, he indicated that you accepted the contents of the reports, especially the recommendation in the Probation Officer’s Report.  He submitted that your parents had recognised that in the past they had failed to support and guide you and now they intended to rectify their mistakes.  He indicated that they were present in court today to show their support, along with your Social Worker.  In the long term, it was your hope and plan to complete your residential drug treatment program and, on release, seek an apprenticeship.  He submitted that you would benefit from a further Probation Order with strict conditions.

18.  He accepted that the usual guidelines for this type of offence was an immediate prison sentence in the region of 4 years’ starting point. 

19.  He referred me to the case of Attorney General v Fong Man Hung and Another, CAAR5/1997.  To put it succinctly, in that case the Court of Appeal did not rule out a DATC Order where there were exceptional circumstances.  Mr Wong urged me to consider that a Probation Order with residential treatment was very similar to a DATC Order.  He referred me to a progress report from your Social Worker and a letter from your parents. 

20.  He urged me to find that this was an exceptional case given your youth and the difficulties you had faced over the last 3 years since coming from the Mainland.  He also referred to the apparent lack of serious injuries and the fact that whilst there were two robbers, this was mitigated to some extent by the location in the restaurant where the victim was sitting with friends and there were adults around.  He said that it may have been that you were acting under the influence of dangerous drugs and he urged me to adopt the recommendation in the Probation Report and make a further Probation Order.

21.  His mitigation in respect of you, D2, was somewhat briefer.  There was not too much he could say in fairness about your situation.  He told me that you are single, 25 years of age, and residing with your mother.  It seems that your father abandoned the family many years ago. You had been sentenced to DATC on the last occasion when you had appeared for possession of dangerous drugs and arson and served 8 months in DATC. Mr Wong made the point that had all sentences been imposed together it may have been some discount would have been forthcoming.  He also told me that after leaving school you had been employed in a warehouse, earning about $5,000 a month.

22.  I turn now to the sentences.

23.  Whilst robbery is always serious, this was at the lowest end of the scale, in my opinion, involving minimal violence, no weapon and a public location.  I accept that the victim was seated with friends and there were adults around in the restaurant at the time; also, that neither of you derived any financial benefit from the robbery.  I also note that you were the first to perpetrate acts of violence, D2.  I also note, D1, that you were young at the time and of clear record.

24.  I turn now to the question of a Probation Order.

25.  Despite the mitigation, I do feel that a Probation Order would be wrong in principle and manifestly inadequate given the serious nature of this offence.  The case presented to me was clearly decided on its facts and the prevailing conditions of the day.  I do therefore reject the notion of probation.

26.  In your case, D1, I take a starting point which is somewhat lower but a starting point of 39 months.  That will be reduced to 26 months for your plea of guilty.

27.  D2, I do take into consideration what has been said on your behalf, that there may have been some discount if all offences had been heard together, though I do note the offences themselves were of very different natures.  I also note that you have a poor record, especially relating to crimes of dishonesty, and that you were the first person to commit an act of violence in this case. 

28.  In your case, I take a starting point of 45 months, reduced to 30 months.  You will therefore go to prison for 30 months.