HKSAR v. YIP CHUN WING

DCCC 953/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 953 OF 2012

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two joint charges of robbery of mobile phones (charges 3 & 5) and one joint charge of conspiracy to rob (charge 4), contrary to section 10 of the Theft Ordinance, Chapter 210 and sections 159A and 159C of the Crimes Ordinance, Chapter 200. The co-accused Ho Chun-lung (D1) and Ho Sui-hing (D2) have pleaded not guilty to the charges and will appear for trial later this month.

Charge 3

2.  At about 1.00 a.m. on the 16th August last year Mr Lam Ka-chun was on his way home when the three defendants together approached from behind.  They assaulted Mr Lam by punching and kicking him during which one of the defendants took away his Samsung mobile phone.  Mr Lam sustained minor injuries for which he was treated by ambulance men who attended the scene.  D1 sold the phone to a mobile phone shop in Tuen Mun for $1,000.

Charge 5

3.  In the early hours of the 23rd August last year Mr Ho Wang-fung was on his way home when he realised the three defendants were following him.  One of the defendants punched Mr Ho on the nose and then all three hit him on his head.  One of the defendants took away his iPhone, which D1 attempted to sell the same day.  Mr Ho was sent to hospital but fortunately sustained only relatively minor injuries. 

Charge 4

4.  D3 was arrested the next day.  Under caution the defendant admitted his involvement in the two robberies.  The defendant further admitted that after the first robbery the three defendants returned to the home of D1where they discussed committing another robbery that night. The three defendants then went out to look for targets but did not find any.

5.  No knife or weapon having been used the proper basis for sentence is that which is appropriate for an unarmed robbery.  The starting point for unarmed robbery is generally no more than 4 years imprisonment, for example see R v Yau Kwok Tung [1987] HKLR 782 as applied in HKSAR v Ting Chiu[2003] 3 HKLRD 378.  

6.  Whilst each case is decided upon its own particular facts and circumstances I would refer to two cases, which have some similarities to the present case.  First, in HKSAR v Lam Ka Hung CACC 294/2003, a 57 year old female was walking home in the early evening when her handbag was snatched.  When the lady resisted there was a struggle resulting in her falling to the ground and sustaining a minor abrasion to one of her fingers.  The Court of Appeal, noting the defendant had eleven previous convictions although none for either robbery or violence, said a 4 year starting point was appropriate.

7.  Second, in HKSAR v Tsang Wai-man CACC 288/2006 the Court of Appeal again said a 4 year starting point was appropriate where the appellant, aged 22, together with another male twice picked on young boys aged between 13-18, slapping, punching and kicking the boys although no actual injuries were caused to any of the boys. The appellant in that case had six previous convictions for which he had been sentenced to Detention Centre and imprisonment.

8.  In passing sentence I take into account everything said on behalf of the defendant by Mr So together with all the letters of support from family, friends, and former schoolmates and work colleagues together with some voluntary work in 2004 and 2007.  I have carefully considered the content of the Training Centre report. 

Rehabilitation

9.  The defendant was 19 at the time of the offences, having turned 20 during the remand.  Mr So submits that in view of the defendant’s young age, and that he has a clear record, a training centre order is appropriate. 

10.  This was the approach taken recently by the Court of Appeal in HKSAR v Wong Tsz Hin CACC 38/2012 in respect of a 16 year old who had a clear record.  The Court of Appeal set aside a sentence of 4 years and 2 months imprisonment for two counts of robbery and substituted a Training Centre Order. 

11.  I note the facts of that case and R v Cheung Wing Wai & others [1993] 2 HKCLR 139 cited in the judgment, are more serious than the present case, in that a knife was displayed in the course of committing the robberies although no injuries appear to have been caused.  Further the question of rehabilitation did not arise in any of the cases cited earlier by reason of the age of the offender and in one case because the offenders were illegal immigrants.

12.  The Training Centre report is not one that I would term a good report.  By the end of Form Two academic performance was only average with many records of late attendance. Performance further deteriorated in Form Three with the defendant spending most of his time loitering in cyber cafes in Tuen Mun where he came to know triad peers.  After quitting school the defendant enrolled in a three-year diploma in hairdressing but due to laziness failed to complete the course.  Since starting work in 2008 the defendant has worked variously as a waiter, kitchen assistant and sales person.  His last job was with his father as an apprentice technician but he quit after a year, again due to his laziness.  Under the influence of his peers the defendant has sniffed ketamine and smoked cocaine.

13.  A recital of this conduct clearly shows the defendant is in need of disciplinary training.  A period of disciplinary training coupled with statutory supervision is said to be beneficial to the defendant in order to help the defendant gain insight into his problems and strengthen his law-abiding concept.

14.  The question therefore remains whether the three robberies to which the defendant has pleaded guilty are so serious the only proper sentence is one of imprisonment.  Whilst the defendant in comparative terms, having just turned 20, is much older and more mature than a 16 or 17 year old, the defendant is still a young offender. 

15.  Taking into account the defendant has a clear record; he has pleaded guilty and according to the report showed great sense of remorse for his misbehaviours; and that he has spent over four months in custody on remand, I am prepared to give the defendant the benefit of a sentence of rehabilitation, which I am satisfied is in the interests of both the community and the defendant.  The defendant is convicted and sentenced to detention in a training centre, concurrent on each charge.