HKSAR v. TSE CHUN HUNG

DCCC405/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 405 OF 2010

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Reasons for Sentence

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1.  The defendant, Mr Tse Chun-hung, pleads guilty to two charges.  Charge 1 is robbery, contrary to section 10 of the Theft Ordinance, Chapter 210.  Particulars of the offence are that the defendant:

“...on the 17th day of February 2010, at 7th Floor, Block 13, Pak Tin Estate, Sham Shui Po, Kowloon, in Hong Kong, together with Cheung Kin-fun, robbed Choi Wai-hing of one handbag containing one purse, cash of $800 Hong Kong currency, one Octopus card and one senior citizen card.”

2.  The 2nd charge is failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Chapter 221. The particulars of offence are that the defendant:

“...on the 6th day of January 2011, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as should have been appointed by a court.”

Facts Admitted

3.  On 17 February 2010, at about 0840 hours, the victim, an 83-year-old lady, travelled in the same lift with the defendant, and a person named Cheung Kin-fun (referred to as “Cheung”) in Block 13, Pak Tin Estate, Sham Shui Po, Kowloon.  When the lift stopped on the 7th floor, victim left the lift, intending to go home at Room 709.  The defendant followed her.  When the victim reached the staircase, the defendant pushed her from behind and she fell on the ground. The defendant snatched her handbag and fled.

4.  The victim sustained bruises on her left knee and minor injuries on her hands.  The handbag contained a purse, $800 cash, an Octopus card and her senior citizen card. 

5.  The defendant was arrested on 5 March 2010.  Under caution, he admitted the offence.  In a subsequent video-recorded interview, the defendant admitted, inter alia, that it was Cheung who had suggested to rob old ladies, and he had robbed the victim without using force.  He had given the handbag and its contents to Cheung, and Cheung had given him $100.

6.  The defendant was charged with robbery and was given bail by the court.  He failed to appear in court on 6 January 2011 for the trial, and a warrant of arrest was issued by the court.  The defendant was re-arrested on 9 March 2011.

Criminal Record

7.  The defendant has seven previous convictions, of which six involved dishonesty.  He was last convicted on 22 June 2009 of one count of loitering and three counts of theft and was sentenced to detention centre.

Authorities Cited by the Prosecution

8.  The prosecution submits two authorities to assist the court in sentencing.  They are HKSAR v Pang Chung CACC281/99 and HKSAR v Lee Kin Wai CACC315/2001.  In the first case, the victim, a 70‑year‑old watchman of commercial premises, was robbed by the defendant who was an illegal immigrant.  The defendant committed the offence together with another person.  They robbed the victim of $1,340.  During the robbery, the victim was manhandled and bound up.  For the offences of robbery and being in Hong Kong without the permission of the Director of Immigration, the defendant was sentenced to a total of 7 years’ imprisonment after trial, and the sentence was approved by the Court of Appeal.

9.  In the second authority, the victim, a 79-year-old lady, was assaulted and robbed by the defendant when she returned to her premises which were being burgled by the defendant.  The victim suffered a number of injuries, including subconjunctival haemorrhage and parietal bone fracture, and was hospitalised for nine days.  The defendant was aged 17 and was at the time of the offence going out with the victim’s granddaughter.  He was convicted of robbery after trial by a jury and was sentenced to 8 years’ imprisonment which was affirmed by the Court of Appeal on appeal by the defendant.

Training Centre Report

10.  Before sentencing, the court obtains a training centre report of the defendant.  According to the report, the defendant is aged 19 and was brought up by his mother after his mother divorced his father when the defendant was about 8 years old.  The defendant dropped out from school without completing Form 1 and had worked as a transportation worker, a waiter, a kitchen worker and a delivery worker. 

11.  As a result of the various offences committed by him, he had been to rehabilitation centre and detention centre.  He worked as a decoration worker at the time of the present offence.  He was recalled to the detention centre for further training between March and May 2010 because of the present case.  In October 2010, the defendant worked as a delivery worker, earning $280 a day.  He became jobless since December 2010. 

12.  The defendant lives a loose lifestyle, associating with undesirable peers and frequenting games centres, parks and basketball courts.  He tried the dangerous drug “Ice” in April 2009.  His performance during the remand in the present case was poor, and he had a fight with other prisoners on 26 May 2011.  The defendant claimed to the Correctional Services Department officer compiling the report that he was innocent of the present offence.  The officer is of the view that in view of the defendant’s lack of reflection of his problems, a longer period of disciplinary training coupled with longer statutory provision could be beneficial to the defendant’s rehabilitation.  He considers the defendant suitable for admission to the training centre.

Mitigation

13.  Counsel for the defence submits in mitigation that the defendant is only an irresponsible young man and is not a serious criminal.  He only pushed the old lady during the robbery, and he committed the offence out of stupidity.  He was a construction site worker at the time of the offence, earning about $300 a day.  He pleads guilty in court and is remorseful for what he has done.

14.  Concerning the claim of innocence of the defendant as set out in the training centre report, the counsel explains that it was a misunderstanding between the defendant and the Correctional Services Department officer.  The defendant only meant to say that the offence had been instigated by Cheung and it was not his intention to assert his innocence in the present case.

Sentence

15.  Robbery is a serious offence.  If the present case was committed by an adult, the likely sentence would be in the range of at least 4 to 5 years’ imprisonment after trial.  The court accepts that the defendant is an irresponsible young man, but the court has much reservation as regards the submission of the defence counsel that he is not a serious criminal.  Although the defendant is only aged 19, he already has a lengthy criminal record and had been sentenced to various reformatory institutions, including rehabilitation centre and detention centre.  The defendant fails to learn his lessons and continues to offend the law despite all this training and punishments.

16.  The court has to consider whether further disciplinary training as suggested in the training centre report can help the defendant rehabilitate.  The defendant is no doubt a person who is always ready to break the law for his own needs and benefits.  He is in complete lack of law-abiding concept. 

17.  The court must say that in the present case, the only sentencing alternative is either to send the defendant to prison or to send him to training centre.  Despite the defendant’s long history of law-offending behaviour, he is still of relatively young age. He is under the age of 21, and according to the law, the court should not send him to prison unless there is no other way to deal with him.  The court is of the view that in dealing with a young man like the defendant in the present case, the court should place more emphasis on helping the defendant to rehabilitate instead of punishing him.

18.  Having considered the whole circumstances of the case, the court is prepared to give him a last chance.  The court comes to the conclusion that a period of disciplinary training in a confined environment which is followed by a lengthy period of statutory supervision is most beneficial to the rehabilitation of the defendant.  The court therefore sentences the defendant to training centre for the two offences he stands convicted.