HKSAR v. WONG KA NGO, MAVERICK AND ANOTHER

DCCC 859/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 859 OF 2016

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REASONS FOR SENTENCE

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1.  Thedefendants (D1 and D2 on the indictment and so termed throughout) have each pleaded guilty before me to the charges they each face. D1 and D2 have each admitted Count 1 of assault with intent to rob, contrary to Section 10(2) of the Theft Ordinance, Cap. 210 and Count 2 of robbery, contrary to Section 10 of the Theft Ordinance, Cap. 210, where they are jointly charged, while D1 has admitted Counts 3 to 12 of obtaining property by deception, contrary to Section 17(1) of the Theft Ordinance, Cap. 210

Facts

2.  The facts admitted by D1 and D2 reveal that at about 1.45 a.m. on 26 June, 2016, whilst Mr. Yeung Fan was sitting alone on a bench listening to music inside the Tai Po Waterfront Park, he noticed a group of young people consisting of 4 males and 1 female chatting loudly nearby.  Suddenly he felt he had been struck from behind with a hard object. He turned around and saw one of the males from the group. Another male from the group punched him forcefully on his face.  He struggled. 2 passers-by walked past. He heard one of his assailants saying to the other “Are we still going to do it or not?”  The other shook his head, and then the two assailants fled the scene together.  Mr. Yeung attended the A & E Department of the Alice Ho Miu Ling Nethersole Hospital - he was found to have sustained a 1 cm laceration and tenderness to his scalp although an x-ray showed no fracture. He received stitches for his wound and was discharged from the hospital on the same day (Count 1).

3.  At 3.13 a.m. on the same day, Mr. Lee Wing-nam was walking towards the bus terminus situated near the Tai Po Old Market Playground. He was on his way to work. He was suddenly pushed from behind and lost his balance. Someone pulled his rucksack which he was carrying on his back. After he fell to the ground, he felt that he had been pressed down tightly by more than one person.  His head was touching the ground, whilst his eyes were covered by a hand. His rucksack containing the items listed in the particulars of Count 2 was snatched away. Someone inserted their hand into the pocket of his trousers and took away his mobile telephone – an I-phone 6S.  The assailants kicked his thighs multiple times forcing him to disclose the password of his I-phone. Eventually, after Mr. Lee had disclosed his password, the group of people fled the scene (Count 2). During the robbery, Mr. Lee sustained injuries including swelling on his lip, abrasion to his elbow and laceration to his right knee.

4.  One of the items in Mr. Lee’s wallet which was in his rucksack was a Hang Seng Bank “Enjoy” Visa Card in his name.  The Visa Card was found to have been used to make purchases of cigarettes, drinks, etc. at various “7-Eleven” Convenience Stores situated in the Sheung Shui area in the early hours of 26 June, 2016, shortly after Mr. Lee was robbed (Counts 3-12). D1 admitted that he had used the Visa Card stolen from Mr. Lee on 26 June, 2016 during the robbery to purchase the items set out in the particulars of Counts 3 to 12.  The total value of the goods purchased using the stolen Visa Card is approximately HK$1,660.60. 

5.  At around 11.55 p.m. on 27 June, 2016, PC 3769 was conducting an anti-crime patrol inside a cyber café and spotted D1acting furtively.  D1 was intercepted and questioned, and admitted that he had robbed Mr. Lee on 26 June, 2016 and asked for a chance. He said he had committed the robbery alone and had already sold the I-phone. He had committed the offence because he was short of money.  D1’s home was searched on 28 June, 2016 and 9 packets of cigarettes bought from “7-Eleven” Convenience Stores in the Sheung Shui area using the stolen Visa Card were recovered. In a subsequent video-recorded interview under caution, D1 admitted he was with friends including D2 in the early hours of 26 June, 2016. He and D2 had picked up a brick from the roadside and used it to hit  Mr. Yeung intending to rob him. He also admitted that he and D2 had robbed Mr. Lee.  After committing the robbery, the entire group boarded a taxi and left.  He and D2 went to Sheung Shui where he used the stolen Visa Card at various “7-Eleven” Convenience Stores to purchase the items set out in the particulars of Counts 3 to 12.  He eventually discarded the Visa Card in a rubbish bin. He and D2 took a taxi to Mongkok, where they sold the stolen I-phone for HK$800.  The group then shared the HK$800 proceeds.

6.  D2 was located and arrested on 29 July, 2016.  During a video-recorded interview under caution in the presence of his father, D2 admitted committing Counts 1 and 2.  He admitted that he and D1 had picked up a brick from the roadside and hit Mr. Yeung intending to rob him. He admitted committing Count 2 with another male person and going with D1 to Mongkok later to sell Mr. Lee’s I-phone.

7.  I was satisfied beyond all reasonable doubt that the facts admitted by D1 and D2 supported the charges that they had each admitted, and accordingly I convicted D1 and D2 on the charges that they each faced.

8.  D1 was born on 1/2/1998. He   was 18 years and 4 months old at the time of the offences and is now 18 years and 9 months old.  D2 was born on 16/5/2001. He was 15 years and 1 month old at the time of the offences and is now 15 years and 6 months old.

9.  Counts 1 and 2 are excepted offences under the Criminal Procedure Ordinance, Cap. 221. I am aware of the case of Law Ka Kit, [2003] 2 HKC 178 concerning extreme youth as a mitigating factor in robbery cases.  Although the circumstances of the robbery in that case are far more serious than in our present case, the principle regarding what age can be considered as extreme youth still applies. Stock JA said:

“27. Yet, it has for long been recognized that “youth may pale into insignificance because of the magnitude or prevalence of the offence”: see Re Applications for Review of Sentence[1972] HKLR 370, 417.Cases of serious robbery fall within the band of cases where youth is not a strong mitigating factor: see R v Chung Man Kit[1990] 1 HKC 87; and Secretary for JusticeCAAR Application for Review 4 of 2000. That is because in such cases "the public interest must be served over and above the individual interests of the [accused] despite their youth": see R v Chan Chi Fai Cr App 59/83; and the commentary on offences by youth in Cross and Cheung 'Sentencing in Hong Kong', pp. 480 et seq. It is also well established that extreme youth may, though it does not necessarily, constitute strong mitigation. Where such strong mitigation may lead depends on the case and all the circumstances, including the circumstances of the individual offender. What is "extreme youth" is not a matter of exact mathematics, although someone under the age of 15, as was D2, falls within this category.”

I find that neither D1 nor D2 fall within the category of ‘extreme youth’.

10.  Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Section 11(2) of the Juvenile Offenders Ordinance, Cap. 226, provides that no young person shall be sentenced to imprisonment if he can suitably be dealt with in any other way.  A ‘young person’ is defined as a person aged 14 years and under the age of 16 years.Although Counts 1 and 2 are excepted offences and therefore outside the ambit of Section 109A of the Criminal Procedure Ordinance, Cap. 221, Counts 3 to 12 are not.  The Court in R. v. Chiang Sun-keung, [1997] 1 HKLRD 24, 29 said ‘it remains incumbent upon the courts to be wary and to exercise great care before they commit young offenders to prison’.  D1being over the age of 16 years and under the age of 21 years, and D2 being a ‘young person’ I adjourned sentence,   calling for Background, Detention and Training Centre reports in respect of each defendant, remanding both of them in custody, and warning them of the likelihood of a custodial sentence.  Mr. Fung, Counsel for both defendants indicated that he would reserve mitigation until the reports were available. When the matter resumed before me yesterday, the reports I had called for were available.  After hearing further mitigation on behalf of each defendant from Mr. Fung, I adjourned the matter until today to deliver sentence.

11.  These reports are now before me and I have read them and taken the contents fully into consideration when deciding sentence. The contents have been explained by Counsel to each defendant and each through Counsel indicate they agree with the contents. Mr. Fung drew to my attention that in the Background Report of D2, there is a typing error in paragraph 8 – ‘D2’ in that paragraph should read as ‘D1’.I have also borne in mind all that has been urged upon me on behalf of each defendant as well as the contents of the various letters submitted in mitigation on behalf of D1.

Previous Convictions

12.  D1 has 2 previous convictions, one for attempted theft and the other for theft, both in 2013, when he was placed on probation.

13.  D2 has 1 previous conviction for theft. I was told that the nature of the theft was snatching.  The offence was committed on 19/7/2016 and he was sentenced to the Detention Centre on 5/8/2016.  He is currently still in the Detention Centre.  The present offences that he has admitted were committed on 26 June, 2016, prior to the offence for which he is currently being detained at the Detention Centre.  He had a clear record at the time of the present offences. In determining sentence for the present offences, I attached no weight to his previous record, and treated him as if he had a clear record.

Further Mitigation

14.  Counsel submitted that he had explained to both defendants the tariff for offences of robbery, that the norm is an immediate custodial sentence.  He accepted too that Counts 1 and 2 are excepted offences, and that neither defendant were in the category of ‘extreme youth’.

D1

15.  I was informed that D1’s parents were in Court to show their support, as was his sworn mother.  D1 had finally met his birth mother who had visited him while he has been in custody. Mr. Fung also submitted letters in mitigation from D1’s former employer Mr. Koon, who spoke well of D1 and indicated that he was prepared to continue to employ him, and also from D1’s sworn mother, who said she was willing to provide him with a home.

16.  The reports before me in respect of D1 set out in great detail the background of D1. I do not intend to rehearse the contents again herein.  From the Background Report, it is clear that D1’s family background is quite complex.  His mother left the family in 1999 shortly after his birth in 1998. He had had no contact with her since.  D1 and his father moved to live with his paternal grandparents after his mother left. When D1 was 9, he and his father moved to live apart from the grandparents. D1 received residential care at the Shing Mun Springs Multi-purpose Rehabilitation Home of St. Stephen’s Society from October 2013 to March 2015. There was some improvement in his behavior.  He was then discharged to return home.  But he had a heated quarrel with his father in July 2015 and left home. He has been sharing a flat with a friend.  He left school without finishing Form 3 in October, 2013. He has worked at various jobs – a month prior to his arrest, he was allegedly doing computer data entry work earning about $7,000 a month. D1’s relationship with his father was poor – his father was fully occupied with work but had also tried to render close supervision of D1 but in an ‘authoritative mode of parenting’, often ending up in quarrels.   The mother claimed that she had no means to contact the father as he had moved away from the family’s original abode and had changed his telephone number. She had finally located D1 and his father with police assistance in August 2015. D1’s parents were formally divorced in December, 2015, with the father being granted custody of D1 and the mother being granted reasonable access.  She had wished to meet D1 but by then he had already moved away and has had no contact with his father since July, 2015. D1 got acquainted with some undesirable peers in school and turned progressively wayward since May 2013, frequenting video-game and billiard centres and bars till late hours.  He picked up bad habits such as smoking and occasional drinking. His father tried to intervene but to no avail.  In the first interview with the Probation Officer,  D1 was evasive in disclosing details of the present offences – he claimed to have forgotten his father’s address and telephone number. D1 was more forthcoming at the second interview, crying when talking about his poor relationship with his father. His father has also visited him whilst he has been detained.  On learning that his mother wanted to visit him, he cried even more, expressing his desire for a mother’s care and concern which had been missing from his life. I am told his mother has seen him whilst he has been detained.  D1’s parents are committed to give their support and encouragement to D1 and seek leniency on his behalf.

17.  The Interviewing Officer for the Detention and Training Centre Reports said that in the course of the interview D1 verbalized his remorse for committing the offences and stressed that he would not re-offend, that he would stay away from his former bad peers.  He was willing to receive a long period of imprisonment but declined to be sent to the Detention or Training Centres.   The Interviewing Officer opined that in order to help D1 develop more insight into his problems and cultivate his positive moral value as well as strengthen his law-abiding concept, a period of disciplinary training coupled with statutory supervision would be beneficial to D1.  D1 was mentally and physically fit for detention in both the Detention Centre as well as the Training Centre.  From the information available and after a general assessment of D1’s behavior and attitude while on remand, and taking into consideration his background, his triad affiliation and repeated criminal behavior, and the nature of the present offences, he considered the Training Centre more suitable as D1 will undergo a more comprehensive programme including educational and vocational training, character, value and life-skill development followed by a longer period of statutory supervision.

D2

18.  Mr. Fung submitted that D2’s father was in Court to show his support for his son. He was disappointed by D2’s offences, but was willing to help him to rehabilitate.

19.  D2’s background is set out in great detail in the reports before me and I do not intend to rehearse the contents again here.  Suffice to say he was born in China and came to Hong Kong with his mother for family reunion with his father in 2012.  He lives with his father, his grandfather and younger brother at a public housing unit in Aberdeen.  His twin brother suffers from mild grade mental retardation and autism and is a student at a special school and living at the Wah Oi Hostel. His mother could not adjust to living in Hong Kong and also had marital problems and returned to China in December, 2012.  D2 dropped out of school in September 2015 without finishing Form 1.  He followed his father to work as a delivery worker but quit after one week. Since then, he did not take up any legal employment but participated in illegal activities. He received Comprehensive Social Security Assistance from 10/5/2013 but this ceased on 1/8/2016 when he was sentenced to the Detention Centre for another offence.   Soon after moving to Hong Kong in 2012, D2 associated with triad peers.  D2 was admitted to the Chak Yan Centre in March 2013.  His mother visited him only a few times from March 2013 to July 2015 at the Chak Yan Centre. He was angry at his mother’s desertion and felt abandoned.  He was hostile towards his father for not giving him adequate love and care.  His relationship with his paternal grandfather was distant.  The Probation Officer in the Background Report opined that D2 was an impulsive, stubborn and rebellious teenager with inadequate problem solving and close triad affiliation. He was hostile to his father for not giving him adequate parent’s care and love. His behavior deteriorated sharply and he was repeatedly missing from home since September 2015.  He failed to observe the conditions of the Care or Protection Order that was made on 2/12/2015 for 12 months despite repeated counseling. He continued his triad association and criminal activities.  He started to take dangerous drugs in June 2016.  He was light hearted about the serious legal consequences of his criminal conduct – he was arrested for another similar offence that he committed after the present ones, for which he was sentenced to the Detention Centre.  Although he was now in the Detention Centre, he still had no remorse for his criminal activities and had little motivation to rehabilitate. His father and grandfather expressed difficulties in supervising him as he did not heed their advice.

20.  The Officer who prepared the Detention and Training Centre Reports said that the supervising officer in charge of D2 in the Detention Centre said that D2 was able to tune in to disciplinary training and to make steady progress while undergoing training there. He had been promoted to Grade 2 on 24/10/2016. He showed a sense of remorse for his misdeed and determination to turn over a new leaf.   During the training period, D2 had managed to conform to the centre regulations and incurred no disciplinary offence. He was co-operative when interviewed, he admitted his culpability but with little sense of remorse. He committed the present offences out of his weak law-abiding concept and his carefree attitude. He was an obstinate youngster who failed to realize he was highly susceptible to adverse influence from his triad peers. But since his sentence to the Detention Centre, he had learned a lesson and undertook to mend his ways and sought leniency.  D2 was mentally and physically fit for detention in a Detention Centre or a Training Centre.  From the information available and after a general assessment of his behavior and attitude while undergoing training,   D2 was considered more suitable for detention in a Detention Centre.

21.  The maximum penalty for offences of robbery and assault with intent to rob is provided in Section 10(2) of the Theft Ordinance, Cap. 210 – it is life imprisonment. For offences of obtaining property by deception, Section 17(1) of the Theft Ordinance, Cap. 210, provides a sentence of 10 years’ imprisonment upon conviction on indictment.

22.  Sentencing guidelines for armed robberies cases were set in the case of Mo Kwong Sang v. R, [1981] HKLR 610 where Roberts, CJ, said at p. 611:

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

23.  In Mo Kwong Sang, the Court of Appeal made clear that by armed robbery, they refer to use of knives and other dangerous weapons but not to firearms. In Count 1, a brick was used to assault the victim.  The defendants picked up the brick from the vicinity and used it to hit Mr. Yeung from behind on his head.  It is only by the greatest good fortune that he was not more seriously injured.

24.  In Secretary for Justice v. Ma Ping Wah [2000] 2 HKC 566, the Court of Appeal considered the appropriate sentence for robberies involving ‘head bashing’.  In delivering his judgment, Stuart-Moore, V-P, said at page 574:-

“In our judgment, the usual sentence to be imposed for such robberies, following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or culprit who is intent on robbery, should not be less than 8 years’ imprisonment. This is not, of course, a strait-jacket, and there may be some offences where a lesser penalty can be imposed depending on all the circumstances. Equally, depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required.”

25.  In sentencing the defendants, I take into account the whole circumstances of the case, including its nature and the facts, the personal background of each defendant and the mitigation put forward on behalf of each defendant, as well as the contents of the various reports I have before me in respect of each defendant and the letters in mitigation submitted on behalf of D1.

26.  These are serious offences. There are aggravating features here in respect of Counts 1 and 2.  Force was used by at least two persons against each victim. In Count 1, the victim was hit with a hard object on his head and punched forcefully on his face and had to have stitches.  In Count 2, the victim was subjected to physical force. He was pushed and kicked repeatedly. The offences were in the early hours of the morning, and they were committed by more than one person.  D1 then used the Visa card that was stolen during the robbery in Count 2 to purchase various items from various ‘7-Eleven’ Convenience Stores in the Sheung Shui area.

27.  For a case like the present one, if not for the age of the defendants, imprisonment of a substantial term is appropriate.  D1 is now aged 18 years, while D2 is now aged 15 years.  Before sentence, I had adjourned the matter for Background, Detention and Training Centre Reports, which are now before me.  I had advised each Defendant that all options of sentence remained open including imprisonment.   The purpose of obtaining the reports was to facilitate the Court to know better the background of each defendant and the case. The Court is under no obligation to accept and follow the recommendation but, rather, is under a duty to impose the most appropriate sentence.  All sentencing options remain open until a decision is made.

28.  In calling for the reports, my main consideration was the young ages of D1 and D2. D2, strictly speaking, does not have a criminal conviction record. Although D1 does not have an impeccable record, it is a relatively light one.  In respect of Counts 1 and 2, assault with intent to rob and robbery respectively, they each played a vital role.  But for the passers-by in Count 1, D1 and D2 would have completed their robbery of Mr. Yeung. 

29.  In HKSAR v. Wong Chun Cheong, [2001] 4 HKCFAR 12, the Court of Final Appeal indicated that in determining the appropriate sentence for a young offender, it was necessary to have regard, inter alia, not only to the characteristics of the offender but also the circumstances of the offence.

30.  In HKSAR v. Law Ka Kit, supra, where the applicants were aged 14 ½ years at the time of the offence and 15 years at the date of sentence, Stock JA said, “there are cogent considerations which militate against sentencing persons at this age to prison. One is naturally cognizant of the immaturity of youth though maturity will differ widely from offender to offender, the pressure and influences which can be brought to bear especially when one notices a youth committing offences in the company or upon the direction of others who are older, and of the desirability of rehabilitating young offenders in settings more conducive to rehabilitation than may result from long-term imprisonment.”

31.  The Court of Appeal reiterated in HKSAR v. Wu Yee Ki, CACC 513 of 2005, that robbery had long been recognized as an offence for which an immediate custodial sentence should be imposed despite the youth of the offender.

32.  I have given very serious thought as to whether the defendants should be sentenced to imprisonment in light of the seriousness of the offences. I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention. Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard. The defendants would have been fully aware of the gravity of what each was doing and the risks that would be involved if apprehended.

33.  I have also borne in mind the length of imprisonment each defendant is likely to receive had he been over 21.  On the other hand, I cannot overlook their ages and the need for rehabilitation. Their relatively young ages, the relatively clear record of D1 and the clear record of D2 and their personal circumstances have played a determining role in determining sentence.   I am of the view that they are both of them reformable.

34.  D1’s parents have indicated that they will render support – these proceedings have been a wakeup call not only for D1 but also for his parents.  I am of the opinion that it will be in the best interests of the community and D1 himself that he be detained to receive rehabilitative training rather than to be imprisoned. The Training Centre has been recommended for D1.  I am of the view that training in a training centre is expedient to the reformation of D1 and for the prevention of crime, having regard to his character and previous conduct and the circumstances of the offences that he has admitted.  Having considered all these matters, I shall adopt the recommendation of Training Centre for D1 in respect of each of the charges that he has admitted, to be served concurrently.

35.  In respect of D2, the recommendation is that he be sentenced to the Detention Centre in respect of the charges that he has admitted although he is mentally and physically fit for detention in a Detention Centre or a Training Centre and there are places available for him.  The Court is not under an obligation to follow the recommendation stated in the report.

36.  Cons, V-P, in delivering the judgment of the Court of Appeal in R. v. Wong Kwok-kin (D4), CACC 461/1985, said:

“22. A Training centre Order is not to be considered in preference to a Detention Centre Order merely because the period of detention will be longer, as it needs to be from the nature of the treatment to be given during the detention. The two types of centre provide different forms of treatment each designed for the particular needs of the individual offender. The triviality or seriousness of the offence, as we indicated earlier, is a factor to be taken into account, but it cannot be conclusive.”

37.  I have considered the objective as well as the regime and means of training in the different institutions of the Correctional Services Department, bearing in mind the seriousness of the present case and the role D2 played in it.   I do not consider that an order to detain D2 in a Detention Centre is an appropriate order.  Such treatment is not sufficient to reflect the seriousness of the offences that D2 has admitted.  Nor do I consider that the type of training that is provided at the Detention Centre is apt for the rehabilitation of D2.   I am of the view that training in a training centre would be expedient to the reformation of D2 and for the prevention of crime, having regard to his character and previous conduct and to the circumstances of the offences. I am satisfied in the interests of the community that he should be so detained for training.  In the Training Centre, D2 will receive education and vocational training as well as character development training.  In making this decision, I have considered all the circumstances of the case, including mitigation and the contents of the reports before me.   I have also taken into account the possible length of training in a training centre, although it is not a predominant sentencing consideration and I am of the view that the possible length of deprivation of liberty at a Training Centre is not disproportionate in the circumstances of the present case. 

38.  Based on the matters aforesaid, D2 is sentenced to be detained in a Training Centre in respect of Counts 1 and 2, the sentences to be concurrent.  The Detention Centre Order that D2 is currently serving is discharged.