HKSAR v. TSE YU CHOI AND ANOTHER

 DCCC176/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 176 OF 2010

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Reasons for Sentence

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1.  D1 and D2 pleaded guilty to the charges that they faced respectively and were convicted accordingly. As D1 is aged under 21, I called for, inter alia, a training centre report and a detention centre report and adjourned the sentence for both defendants to 27 May today.

Brief Facts

1st Charge (against both Defendants)

2.  At about 9 pm on 30 July 2009, two boys aged 14 and 15 respectively (PW1 and PW2) were approached by D1 and D2 on Boundary Street. D1 and D2 told the victims to surrender their wallets and mobile phones. PW1 surrendered a number of items which included, inter alia, a wallet, cash $330, an Octopus card, one USB drive and a mobile phone. PW2 gave the culprits his property, including, inter alia, one wallet, cash $70, his Hong Kong ID card, home visit permit, an Octopus card and his mobile phone.

3.  One of the defendants slapped the face of PW2. Both defendants fled the scene with the abovesaid stolen property. A report was made.

4.  On 23 December 2009, PW1 identified D1 in an identification parade. PW2 was able to identify both D1 and D2 as the culprits, and mentioned further that it was D2 who asked him to surrender his property.

2nd Charge (against both Defendants)

5.  At about 6.45 pm on 12 August 2009, while PW3 to PW6 were playing football at Tai Hang Tung Road Playground, they were approached by D1 and D2 who claimed that former needed permission to play there. The defendants then led these victims to the exit area of the playground. D2 guarded the victims while D1 proceeded to search the victims’ bags which were left near the goal on the pitch. D2 was seen talking over the phone and then left.

6.  Upon checking, PW3 found that his mobile phone in the bag was gone. Similarly, PW4 found his phone and a wallet containing $300 and his Hong Kong ID card missing. PW5 found his phone and his wallet containing certain cards missing. PW6 found his phone and wallet containing $80, his Hong Kong ID card, etc. missing. A report was made.

7.  On 23 December 2009, PW6 identified D1 and D2 as the culprits.

3rd Charge (against D2 Only)

8.  At about 8.20 pm on 5 September 2009, three boys, all aged 15 (PW7 to PW9), were confronted by D1 and D2 in the basketball playground in Pak Tin Estate. D1 and D2 took the victims to a park nearby at the pretext that someone had assaulted their younger brother. D1 and D2 told the victims, PW7 to PW9, to hand over their mobile phones for checking. The victims gave their phones to D2 who asked them to wait and then left the scene with D1. Later, the victims made a report to the police.

9.  On 23 December 2009, PW8 identified D2 as one of the culprits in an identification parade.

4th Charge (against D1 and D2)

10.  At about 7.15 pm on 19 November 2009, PW10 and PW11 were approached by D1 and D2 in a car park in Tai Hang Tung Estate. D1 and D2 alleged that these two victims might belong to a gang who had assaulted their friends and ordered to inspect their phones. The culprits left the scene after the victims handed their phones to them. Later, the victims made a report to the police.

11.  On 23 December 2009, both PW10 and PW11 identified D1 as one of the culprits.

5th Charge (against D1 Only)

12.  At about 6.30 pm on 25 November 2009, a 13-year-old boy (PW12) and a girl (PW13) were approached by D1 and a male in a park at Boundary Street. The culprits alleged that the victims had taken their brother’s mobile phone. Feeling scared, PW12 and PW13 handed over their phones to the culprits. D1 and the male then left the scene.

13.  On 23 December 2009, PW12 identified D1 as one of the culprits.

6th Charge (against both D1 and D2) and 7th Charge (against D2 Only)

14.  The seven victims, PW14 to PW20, are boys aged between 13 and 15. At about 5 pm on 28 November 2009, D1 and D2 approached the victims who were playing basketball outside Nam Wai House in Nam Shan Estate. The culprits asked if the boys had any triad background. D2 claimed that he belonged to “Kowloon Chai Sing Wo” and was a local bully. The culprits then demanded the victims to hand over their phones to see if they knew any person belonging to the gang 14. Feeling scared, the victims surrendered their phones. The culprits then left the scene.

15.  On 23 December 2009, PW15, PW16 and PW20 identified D2 as the one who uttered the words “Sing Wo.”

8th Charge (against D1 and D2)

16.  At about 6.55 pm on 30 November 2009, D1 and D2 approached three victims (PW21 to PW23) in a playground in Tai Hang Tung Estate. The culprits accused the victims of staring at them. The defendants then demanded the victims to surrender their phones. Otherwise, they would be beaten up till bleeding. The victims were told to move forward, and the defendants then fled.

17.  On 23 December 2009, PW23 identified D1 as the one who made the demand or they would be beaten up.

18.  In the afternoon of 16 December 2009, PW17 and PW19 recognised D1 and D2 in Nam Shan Estate. Eventually, the police intercepted D1 while D2 managed to abscond.

19.  Under caution, D1 admitted, inter alia, that it was D2, nicknamed Pang Pang, who took some of the mobile phones from the youngsters and gave four to him. He returned these four phones to D2 later. Subsequently, D1 made further admissions as follows:

(1)  As regards the incident in the 8th charge, D1 together with D2 stopped three students near a petrol station.  It was D2 who demanded the students to surrender their phones in a fierce manner.

(2)  D1 assisted D2 by urging the students to surrender their phones.

(3)  He held the phones for a while and then returned the same to D2.

(4)  Relating to the incident in the 6th charge, D1 assisted D2 to get the phones from the young people, but he did not derive any gain.

(5)  Relating to the incident in the 8th charge, he assisted D2 in getting the phones from the students.

20.  D1 disclosed the whereabouts of D2 who was eventually arrested on 17 December 2009. Under caution, D2 admitted that he had said he belonged to Sing Wo and he had taken some mobile phones from others. D2 made further admissions in a tape-recorded interview whereby he admitted committing the offences in Charges 3, 4, 6 and 8 with D2 and also Charge 7. They had sold the mobile phones and shared the proceeds.

Mitigation

21.  Counsel for D1 submitted that as D1 is not suitable for detention centre and training centre, the continuation of D1’s detention in DATC was an option. It was said that D1 came from a decent and loving family. D1 was not a boy beyond redemption. D1 regretted that he perpetrated these crimes and has hurt his parents. It was submitted that rehabilitation should be the main theme in sentencing D1. As there is no sentencing authority for this type of offences, counsel asked for a shorter sentence.

22.  Counsel for D2 said D2 worked as a kitchen worker, earning about $9,000 per month. He lived with his mother after his parents divorced long time ago. He has a girlfriend who just gave birth to their child in April this year. It was submitted that the crimes were not premeditated nor sophisticated. D2 committed the offence because he had limited resources and needed money. Counsel urged the court to pass a concurrent sentence in respect of Charge 7.

23.  As D1 is under 21, I called for the detention centre and training centre reports, on top of the background report suggested by counsel for D1.

24.  Although the defendants pleaded guilty to the offences of theft, it is apparent that the facts relating to the 1st and the 8th charges were tantamount to an unarmed robbery which obviously carried a much heavier sentence. The defendants were fortunate that their pleas to the lesser offences were accepted by the prosecution. That said, I am duty‑bound to sentence the defendants on the basis that they perpetrated the theft offences as charged.

25.  These are bully-type theft offences whereby D1 and D2 preyed on young victims who were having healthy sports games in the playground. They committed the offences repeatedly during a short period of time, with five committed in November. They projected a tone of gangsters to threaten the young victims in surrendering their phones, and on one occasion, D2 even proclaimed himself as a member of a triad society. Although the stolen properties are not of high value, the theft of the mobile phones would definitely cause a lot of inconvenience to the owners. Some of the victims even lost their personal identification documents. All stolen properties cannot be recovered. That bullying activities and criminal acts would certainly deter young people to go to the playground for recreational or sports purposes.

26.  D1 is now aged 19 and studied up to Form 5. He joined a triad society in Form 4 and started to abuse ketamine and Ecstasy in mid-2007. He even started to take cocaine subsequently. He has one conviction of the offence of possession of offensive weapon in May 2009 and was bound over for 12 months. He did not make good use of the opportunity to reform himself but went further astray. As D1 is a drug dependent, he is considered not suitable for detention in a detention centre or a training centre. From the background report and what was submitted by counsel today, I was surprised to see that his parents were kept in the dark about his son’s problem and his abuse of drugs several years ago. It was said D1’s parents only went to China to establish their business last year. The DC and TC suitability report further commented that:

“As observed, defendant showed little sense of remorse and failed to learn any lesson even after a period of remand.”

27.  As regards D2, he is aged 21 and worked as a kitchen worker before his arrest. D2 has four previous with one similar back in January 2007, for which he was sent to the training centre. Apparently, D2 also failed to learn his lesson and committed further offences.

28.  I have considered all the circumstances of the case and the mitigating factors for both defendants. The most significant mitigation is their guilty plea, for which they are entitled to a one-third discount. To simplify the sentencing process, I would adopt a global approach for each and every theft offence. The defendants were jointly charged for theft in Charges 1, 2, 4, 6 and 8; and separately charged in Charges 3 and 5 respectively. Although the offences were not sophisticated, I take the view that the defendants committed the offences with a certain degree of premeditation as they would target those youngsters having ball games in the playground. All offences were perpetrated either at night-time or in the evening. After two successful theft incidents, the defendants changed their modus operandi and targeted to fetch mobile phones only.

29.  In all the circumstances, I would adopt a starting point of 2 years for each and every abovementioned charges against both defendants. With their pleas, I reduce the sentence to 16 months to be served concurrently. As regards Charge 7, which related to D2 only, I would adopt a starting point of 9 months and reduce the sentence to 6 months. I have considered the totality principle and order that 2 months of the sentence for Charge 7 is to be served consecutively to the remaining sentences. In gist, I sentence D1 to 16 months and D2 to 18 months in total.