HKSAR v. YEUNG KA CHUN AND OTHERS

DCCC1031/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1031 OF 2011

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Reasons for Sentence

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1.  The three defendants enter a plea of guilty to one joint charge of robbery, preferred against them under section 10 of the Theft Ordinance, Cap.210.

Facts

2.  The facts to which they agree are as follows.

3.  During the small hours of 20 June 2011, the three defendants masked themselves and entered VANGO Convenience Store, Ground Floor, Shek Ning House, Shek Lei (I) Estate, Kwai Chung.  The 1st and 2nd defendants each blandished a wooden bar, a nail sticking out from it, and declared robbery to the two female staff members of the store.  Scared, the cashier took $1,470 from the cash register and gave the money to the 1st defendant.  The defendants then left.  

4.  An hour and a half later the police located the three defendants at a footbridge near No. 482 Castle Peak Road.  On seeing the police officers, the defendants fled in different directions, but failed in the end to make good their escape. 

5.  Under caution, the 1st defendant confessed owing a large amount to a finance company, so he committed the robbery with the 2nd and 3rd defendants.  The 2nd defendant said he was responsible for purchasing the masks and demanded the cashier to surrender banknotes of large denomination during the robbery.  The 3rd defendant owned up under caution, saying he found one of the wooden bars used in the robbery, and asked the police officer for a chance.  All three defendants said they had shared the proceeds of the crime and had spent the money on prostitution. 

Conviction

6.  The court finds the defendants guilty of the charge.

7.  The defendants have had a clear record prior to their current conviction. 

Pre-sentence Reports

8.  The 1st defendant is 19, the 2nd defendant 16, and the 3rd defendant 17.  In view of their age and clear record, the court has commissioned some pre-sentence reports on them, contents of which are as follows.   

(1) The 1st Defendant

9.  The defendant is the youngest and only son of the family.  He lives with his parents in a public housing estate, his three elder sisters having married and living apart. Educated to Form Three level, the defendant works as a lorry attendant, making $7,600 a month. 

10.  The defendant has an uneventful childhood.  His three elder sisters assisted in looking after him when he was young.  In recent years, as his sisters got married and moved away and his parents have been busy at work, the defendant no longer enjoyed the same degree of care and attention at home. 

11.  He was unable to catch up with his secondary studies and mingled with playful peers.  In the end, he fell into the company of persons with a triad background.  He earned himself 27 black marks at school and dropped out in July 2007. 

12.  Through over-spending, he became indebted to a finance company, so he committed this offence of robbery with the 2nd and the 3rd defendants. 

13.  The assessment officer of the Correctional Services recommends a Training Centre Order for him. 

(2) The 2nd Defendant

14.  The defendant’s parents divorced each other in 2006, in which year his father moved away from the matrimonial home.  The only son of the family, the defendant lives with his mother and a younger sister in a public housing estate.  The family depends on social benefits for a living. 

15.  The defendant did reasonably well in primary school, and maintained his academic performance at junior secondary level.  He liked playing football and trained as a member of the school team.  During the summer vacation of Form Three, he began to mingle with dubious peers in football pitches in Kwai Chung, and engaged himself in fun-seeking activities.  His school performance nose-dived, and he ended up quitting school after Form Four.

16.  In July 2011, the defendant completed his Form Four studies and enrolled himself in a diploma course of Building Services and Engineering at the Vocational Training Council (VTC) Youth College in Kwai Chung. 

17.  On 10 January 2012, while on bail for the current offence, he was arrested for an offence of theft of a mobile phone.  The case is still pending. 

18.  The assessment officer of the Correctional Services finds the defendant suitable for detention at the Rehabilitation Centre, the Detention Centre, and the Training Centre, and recommends a Detention Centre Order for him. 

(3) The 3rd Defendant

19.  The defendant has been brought up in a broken family at a public housing estate, his father having lived apart since 1994.  He is the younger of the two siblings. 

20.  When young, the defendant and his elder brother were entrusted to the care of their paternal grandparents.  The grandparents passed away in the early 2000s.  The defendant’s mother was unable to provide the defendant with adequate parental attention due to her work commitment.        

21.  The defendant finished his primary schooling with a fair result in 2006 and could maintain his academic performance in his early secondary years.  He liked playing basketball. 

22.  In conduct, the defendant did not fare so well and received  Superintendent’s cautions arising from two incidents of theft in 2004 and 2008.    

23.  After he failed his Form Four studies, the defendant became a hairdressing apprentice and later a warehouse attendant making about $6,000 a month, but he quit his job in January 2012. 

24.  On 27 April 2011, the defendant was arrested in connection with a case of wounding or inflicting grievous bodily harm.  In June 2011, he committed the current offence of robbery while on police bail.   

25.  The defendant is considered suitable for detention at the Rehabilitation Centre, the Detention Centre, and the Training Centre; and a Detention Centre Order is recommended. 

Mitigation

26.  In mitigation, the defence puts forward the following matters for the court’s consideration. 

(1) The 1st Defendant

27.  The defendant understands and accepts the contents of the pre-sentence report. 

28.  It is submitted that the defendant is kind-hearted and young.  He is a member of the Scouts and has taken part in voluntary work following his father’s footstep. 

29.  He became lonely when his sisters got married and moved out. 

30.  Lack of discipline, counsel submits, was the cause of the defendant’s transgression of the law. This is supported by what the defendant said under caution to the police; there he attributed his criminal behaviour to his mischievous nature. 

31.  It is pointed out that the defendant’s parents have expressed willingness to make full compensation to the victim company in August 2011.

32.  Counsel for the defendant supports the recommendation of the Correctional Services and stresses that the Training Centre can provide the defendant with the proper environment of rehabilitation.  Counsel refers to the maximum period of detention at the Training Centre and submits that it is not a soft option, particularly in view of the lengthy supervision period following the defendant’s release.  

33.  The defendant has reflected deeply into his life pattern.  He promises to turn over a new leaf. He understands his future will be tough, but is willing to accept whatever sentence the court sees fit to pass on him and vows to live an honest and law-abiding life, to become a useful member of the society. 

(2) The 2nd Defendant

34.  The defendant agrees with the pre-sentence report.  The defence submits that the defendant is a young person.  He pleads guilty to the charge to express remorse. 

35.  He has his whole family present in court to show him support. 

36.  It is submitted that parental guidance has been insufficient as the defendant’s father has for a substantial period of time been living apart.     

37.  Counsel asks the court to adopt the recommendation of the Correctional Services for a Detention Centre Order. 

(3) The 3rd Defendant

38.  The defendant likewise accepts the contents of the pre-sentence report. 

39.  Very much like the 2nd defendant, the 3rd defendant is also a young person with a clear record. He enters a plea of guilty to express remorse and to save court’s time. 

40.  This defendant, it is submitted, was also brought up in a broken family without much guidance and attention of the father. 

41.  He fully co-operated with the police upon his arrest, and attributed his offending to greediness. 

42.  The defence asks the court to approve the Detention Centre recommendation of the Correctional Services.  

Discussion

43.  Robbery is a serious offence, carrying as it does a statutory maximum of imprisonment for life.  It consists of two criminal elements, namely, the use of force, actual or threatened, and a dishonest appropriation of the victim’s belongings.  A deterrent sentence is invariably called for.     

44.  The Court of Appeal has laid down a sentence guideline for armed robbery (Mo Kwong Sang v R [1981] HKLR 610).  For a robbery in which a weapon is displayed, a starting point of five years would be appropriate. 

45.  In Mo Kwong Sang’s case, the court said previous clear record would count little in mitigation in a case of armed robbery and that if any physical violence was used, the starting point should be enhanced to one of seven years.

46.  The only observable aggravating circumstance in the instant case is that the robbery involved multiple offenders.  That said, no actual physical violence was used; and more importantly, the defendants in this case are young persons, a circumstance not present in and therefore not within the consideration of the Mo Kwong Sang’s case. 

47.  All things considered, a starting point of about five years would have been appropriate for the offence of which the defendants stand convicted.

48.  There is an international norm that a prison term should be imposed on a young person only as a last resort.  Hong Kong adheres to this international standard (see section 109A of the Criminal Procedures Ordinance, Cap.221).  In sentencing, a Hong Kong court must give serious consideration to the issue of rehabilitation of young offenders.    

49.  If a five-year starting point is to be adopted, on a plea of guilty and in view of the defendants’ hitherto clear record, one-third discount on sentence should be given, resulting in a period of imprisonment slightly in excess of three years.  Further, a prisoner may earn remission for good behaviour whilst in prison.  

50.  A Training Centre Order, the maximum period of detention of which is one of three years, would provide an offender with the opportunity to acquire useful skills to enhance his prospects of a regular employment and, thus, a successful reintegration into the society.  Further, the offender’s conduct can be closely monitored during the three-year supervision period following his release. 

51.  In all the circumstances of this case, the court is of the view that while a prison sentence can be avoided, a Detention Centre Order would be inadequate to reflect the criminality of the offence and inappropriate in view of the information disclosed in the pre-sentence reports, information with which the 2nd and 3rd defendants agree. 

Conclusion

52.  The court finds that the defendants’ case can be suitably dealt with by a way of a Training Centre Order. 

Order

53.  The 1st, 2^nd, and 3rd defendants are sentenced to detention at the Training Centre. 

54.  By a way of compensation, the 1st defendant is to pay $1,140.90 to China Resources Vanguard (Hong Kong) Company Limited, to be deducted from his bail money.