HKSAR v. LEUNG MAN FUNG AND OTHERS

DCCC1338/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1338 OF 2010

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Reasons for Sentence

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1.  D1, you have pleaded guilty to one offence of theft and one offence of robbery. D4, you were convicted of one offence of theft. D3, you were convicted of one offence of possession of an offensive weapon that is contrary to section 33(1) of the Public Order Ordinance, Cap. 245.

2.  In my verdict, I dealt fully with the facts and I do not need or intend to repeat those facts.  They are well known to everyone.

3.  D1, you are a man of hitherto clear record as is D3.  However, D4, you have 7 previous convictions and are in fact currently serving a sentence of Drug Addiction Treatment Centre imposed subsequent to the commission of the offence of which you are convicted.

4.  D1, in view of your relative youth and clear record, I adjourned the case for the preparation of a probation officer’s background report, which is now before me.

5.  D3, you are 15 years of age - 14 at the time of the offence - and of clear record.  Also, given the section and ordinance under which you are charged, I therefore adjourned the case for reports.  As you are aware, no doubt, from Mr Wu, the powers of this court are severely prescribed as to the sentence that can be imposed.

6.  D4, as I have said, you are presently serving a sentence of Drug Addiction Treatment Centre.  I therefore sought a further DATC report to gauge your progress at that institution.

7.  I can tell all the three of you that I have read the reports presented to me and taken them fully into account when arriving at the sentences which I shall shortly impose.

8.  Mr Tse entered full mitigation on your behalf, D1, on the last occasion.  This has been supplemented today by Miss Yu.  I shall deal, first of all, with Mr Tse’s mitigation.  He reminded me that you are 19 years of age and of clear record.  He produced a medical report which showed that in the past you had suffered from heart problems but now had effectively recovered, which is to be welcomed.

9.  He also produced and referred me to various letters of support in mitigation from a District Council member, you yourself, your father and your mother.  I have taken those letters fully into account when assessing the sentence.  He also produced various certificates showing that you had undertaken charitable work in the field of fund-raising.

10.  He submitted that the offences themselves were not premeditated.  You had been fully co-operative with the police and with the court, including the giving of evidence against others; that I should take this into account despite the outcome.  He told me that even though the victim of the robbery had left Hong Kong, you had still decided to maintain a plea of guilty.  These pleas of guilty, he submitted, were a clear demonstration of your remorse.

11.  Mr Wu also entered mitigation on behalf of his client.  He told me that you, D3, were but 14 years of age at the time of the offence and are now fifteen.  You had been born on the mainland, coming to Hong Kong in 2003 where you received education.  It was your intention to resume your studies after your release.  Referring to your family, I am told that your father is retired and lives in the mainland, whilst you reside with your mother and one brother.  You, your mother and brother are in receipt of public assistance. You have three further sisters who reside apart.

12.  Mr Wu submitted that you had never used the folding knife for any unlawful purpose, not even to scare others.  He asked for leniency.

13.  Mr Cheung entered mitigation on behalf of you, D4.  The prime body of that mitigation was placed before me today, not on the last occasion.  He referred me to the DATC report, which carried a positive recommendation for a further DATC order.  He reminded me that you had been acquitted of the more serious offence of robbery and only convicted of the theft, and that you were not the ringleader in that offence.  The two mobile phones had been recovered, although the SIM cards had not.  He said it was your intention to commit no further offences and he urged me to let you continue to serve your sentence at DATC.  The intention is that you will not be released until the end of this year.

14.  Mr Wu made further brief submissions.  The thrust of those submissions was to persuade me to make a detention centre order rather than look at the more lengthy sentence of a training centre.  I was able to indicate that I was in broad agreement with him on that. 

15.  Miss Yu, on your behalf, D1, went on to make further submissions.  She reiterated that neither of the offences that you pleaded guilty to were planned.  She reminded me that you are only 19 years of age and of clear record.  She also placed two authorities before me:  HKSAR v Lam Ka Hung, Cr App 294 of 2003, and HKSAR v Ting Chiu & Anor, Cr App 174 of 2003.  They involved non-armed robberies.  The court had approved a starting point of 4 years’ imprisonment in those cases, though she asked me to take the view that this was a less serious robbery than those and I should take a lower starting point.  She reminded me that you were but 19 years of age and you had given evidence for the prosecution.

16.  I turn now to the sentences.  D1, you are relatively youthful, being only 19, and you are of clear record and have pleaded guilty.  You did give evidence as a prosecution witness, but I have to say that in general I disbelieved and rejected that evidence.  However, having said that, the robbery itself has to be viewed as at the very bottom of the scale.  No weapon was used.  There was mercifully no injury to the victim.  The victim, whilst obviously very distressed, was generally not put in fear to a great extent.  I accept that you have pleaded guilty even though the victim has left the territory and I also view it as a spontaneous act.  All goods taken were recovered.

17.  Of course, the first offence in time was that of theft from the drunken person.  Again, this would appear to be spontaneous. The person was never put in fear and all goods have been recovered apart from the SIM cards for the phone.

18.  I do view you, D1, as the ringleader, certainly in respect of the robbery and also in respect of the theft.  You were clearly the prime mover.

19.  Taking Charge 1 first of all, I take as a starting point 15 months’ imprisonment reduced to 10 months for your plea of guilty.  Charge 2, which is the robbery, I take as a starting point 3½ years’ imprisonment; that is 42 months. That is reduced to 28 months for your plea of guilty.  I then apply the principle of totality.  The sentences will be served in this way:

10 months on the 1st offence;

20 months consecutive on the 2nd offence; and

8 months concurrent, which means you will go to prison for 30 months.

20.  D3, at the time of the offence you were but 14 years of age.  I accept fully that there is no evidence you actually used the folding knife either to injure or to threaten.  However, it is a vicious weapon.  You were wandering the streets of Hong Kong with it in your possession.  It was available for you to use, though I accept your ultimate purpose was to return it to D4.  In all the circumstances, I accept the recommendation.  You will go to detention centre.

21.  D4, you were convicted after trial of the theft.  Your part in that I find to be minor.  You acted as a lookout for D1. It was D1 who conceived of the scheme.  It was D1 who was the ringleader.  You are deemed to be drug-dependent.  You are serving a sentence at a Drug Addiction Treatment Centre and you seem to be responding to treatment.  I therefore, on that charge, make a fresh DATC order.  The conviction is recorded.

22.  Finally, might I thank counsel for their assistance throughout the proceedings.