HKSAR v. SIU CHI MING AND OTHERS

DCCC871/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 871 OF 2011

-------------------------------

-------------------------------

Reasons for Sentence

-------------------------------

The Charges & the Facts

1.  This case concerned two counts of robbery. The 1^st charge is laid against all three Defendants. The 2^nd charge is laid against the 2nd and the 3rd Defendants only.

2.  At the beginning of the trial, the 2nd Defendant pleaded guilty to both charges. The 1st and the 3rd Defendants stood trial and were convicted afterwards.

3.  The facts were relatively simple. The complainant in this case, male Choi Yau-loi (“Choi”), aged 75, was robbed twice near the lift lobby of his home premises in the small hours of 13 March 2010 and 7 June 2010 when he went out for a morning walk. The robbery in March is the subject matter of the 1^st charge while the robbery in June is the subject matter of the 2^nd charge.

4.  The first robbery happened when Choi was trying to take the lift downstairs for a walk at around 3:40 a.m.. Suddenly, he was covered with a gunny sack from his head down to his shoulders. Thereafter, someone rummaged his jacket pocket. After the culprits had found the HK$4,000 Choi was keeping in his pocket, they left.

5.  The 2^nd robbery happened at about 4:05 a.m. on 7 June 2010. Choi was leaving home for a morning walk at that time. When Choi was heading towards the rear staircase, someone suddenly covered his eyes with both hands from behind him. HK$200 was taken from his trousers pocket and the culprits then left.

6.  Luckily, Choi did not sustain any injury during both robberies.

7.  The only evidence against the 1st and the 3rd Defendants is the admissions each of them made to the police. The 1st Defendant admitted being the look-out in the 1^st robbery while the others robbed Choi. For the 3rd Defendant, he admitted being the one searching Choi’s pocket for money on both occasions.

8.  As regards the 2nd Defendant, the facts he admitted when pleading guilty showed that he had confessed to the police to have taken part in both robberies. He said he was responsible for searching Choi’s pocket.

Mitigation – the 1st Defendant

9.  The 1st Defendant is now aged 21. He is the youngest son of his family. The 1st Defendant’s father has ceased work after having sustained a head injury. His mother works in a factory. The 1st Defendant has an elder brother and an elder sister. Both are working and help to support the family.

10.  The 1st Defendant was educated up to Form 4 level and he quitted school afterwards. Since then, he had worked as a kitchen worker and a delivery worker. However, he had remained unemployed most of the time.

11.  The 1st Defendant has been before the court on two occasions. For the offence of “being a member of a triad society”, he was put on probation in August 2009. Then, in June 2011, he was sent to the Rehabilitation Centre for the offence of “using a false instrument”.

12.  I have adjourned sentence to today in order to obtain a background report and a Detention Centre report on the 1st Defendant. According to the reports, the 1st Defendant’s academic performance had never been good. After he started his secondary education, he frequently absented himself from school and he began affiliating with triad members which eventually led to his convictions.

13.  It was disclosed in the report that during his detention in the Rehabilitation Centre, the 1st Defendant “exerted effort towards his rehabilitation and incurred no disciplinary report against the Centre’s rules and regulations. His family members also showed support towards his reformation and paid regular visits to him.” As the 1st Defendant was able to maintain steady progress, he was discharged on 9 December 2011 subject to one-year statutory supervision.

14.  During the recent interview conducted by the officer, the 1st Defendant was described as polite but reserved in attitude. He was found to be evasive in disclosing his past misdeeds. In particular, the officer commented that the 1st Defendant insisted on his innocence and alleged that he had not participated in the robbery. This morning, Mr. Cheung, who acted for the 1st Defendant, clarified that there was an unfortunate misunderstanding in relation to that part of the report. What the 1st Defendant said was he had only acted as the look-out and he did not take part in getting Choi’s property.

15.  Mr. Cheung told the court that the 1st Defendant is now genuinely remorseful and his family is very supportive. In the letter written by the 1st Defendant which was given to the court, the 1st Defendant accepted his responsibility for having committed the offence and he vowed to turn over a new leaf.

16.  Mr. Cheung also confirmed that the outstanding case mentioned in the report, in which the 1st Defendant was suspected to have in his possession a bamboo stick, is now over as the 1st Defendant was not charged with any offence. In view of the 1st Defendant’s determination to start afresh; his supportive family; and the steady progress he made in the Rehabilitation Centre, Mr. Cheung urged the court to accept the officer’s recommendation and sentence the 1st Defendant to the Detention Centre.

Mitigation – the 2nd Defendant

17.  The 2nd Defendant is now aged 16. He was born in the Mainland and moved to live in Hong Kong in 1997. Initially, the 2nd Defendant lived with his mother. However, after his mother got remarried, he moved to live with his father and his father’s wife.

18.  The 2nd Defendant was educated up to Form 2 level. He then quitted school. Afterwards, he had worked as a waiter and a kitchen assistant in restaurants. Owing to the 2nd Defendant’s wayward behavior, he had been made a subject of the Care and Protection Order. However, despite that arrangement, he still mingled with his triad peers and often stayed out late.

19.  The 2nd Defendant has been before the court on 4 previous occasions with 5 convictions, including “burglary”, “A.O.A.B.H”, and “fighting in a public place”. He was sent to the Detention Centre in August 2010. Then, in August 2011, he was sent to the Training Centre.

20.  In view of the 2nd Defendant’s age and his current detention in the Training Centre, I have asked for a background report, a Training Centre report and a progress report. All these reports are now with me.

21.  The reports described the 2nd Defendant as “being vulnerable to triad peers’ influence” and “strongly identified himself with the delinquent sub-culture”. During his remand in the Detention Centre, the 2nd Defendant was able to make steady progress and to behave himself. After his release from the Detention Centre in March 2011, the 2nd Defendant was gainfully employed and his performance was regarded as acceptable during the initial stage of the supervision period. However, the 2nd Defendant later re-associated with his triad peers which then led to his commission of the offence of “fighting in a public place”. He was sent to the Training Centre in August 2011.

22.  It was reported that, during the recent interview, the 2nd Defendant was remorseful. He realized that it was his immaturity and greed which led to his commission of the various offences. The progress report could be regarded as a favourable one. The 2nd Defendant was described as being able to adjust to the environment and he showed remorse for his misdeeds, making steady progress towards his reformation.

23.  Mr. Ng, who acted for the 2nd Defendant, urged the court to accept the report’s recommendation and sentence the 2nd Defendant to the Training Centre so that he can continue with his present training.

Mitigation – the 3rd Defendant

24.  The 3rd Defendant is now aged 16. He is the younger of two sons in the family. He was educated up to Form 1 level. He then dropped out from school owing to his unsatisfactory academic performance. Afterwards, he started mingling with his triad peers and spent much time in cyber cafés.

25.  The 3rd Defendant was convicted of burglary in September 2010 and was put on probation. However, as he was in breach of the probation order, he was sent to the Detention Centre in October 2011.

26.  In view of the 3rd Defendant’s age and his current detention, I have adjourned sentence to today in order to obtain a background report, a Training Centre report, and a Detention Centre progress report. The officer observed that while the 3rd Defendant’s father is very supportive, the 3rd Defendant has not shown any insight into his misdeeds. The officer concluded that “in order to strengthen his law-abiding concept and for the interest of his rehabilitation, a further period of disciplinary training coupled with statutory supervision is considered beneficial to him.” 

27.  As regards the 3rd Defendant’s performance in the Detention Centre, he has been able to maintain a clear disciplinary record and has shown remorse for his misdeeds.

Sentencing Considerations

28.  Robbery is a serious offence and a term of immediate imprisonment is generally called for. When a robbery is committed by a number of persons on an elderly man, the degree of seriousness of the offence increases. When a defendant targets a vulnerable victim and repeatedly robs him, the seriousness of the offence, no doubt, increases further.  

29.  Both the 2nd and the 3rd Defendants are now aged 16, approaching 17. They were 15 years old at the time of the offences. The 1st Defendant is now aged 21. He was 19½ years old at the time of the 1^st robbery.

30.  From the information available, all three Defendants completely lacked self-discipline and they tended to identify with their triad peers. They sought to gain recognition amongst their peers by committing offences. Clearly, all three Defendants had not given any serious thoughts to the price they had to pay for such criminal conduct. According to the reports, not until their recent remand, they had no idea that their family members, not their triad peers, are the ones who stand by their side when they have to face the consequences of their wrong-doings.

31.  The 2nd Defendant is now in the Training Centre and the 3rd Defendant is in the Detention Centre. Both were reported to have made steady progress and they were recommended to continue with their current training. The 1st Defendant has also been assessed as suitable for detention in the Detention Centre.

32.  After careful consideration, I have come to the conclusion that it is in the interest of the community to give these three Defendants what would appear to be a last chance to help them turn over a new leaf. The disciplinary training and the statutory supervision would help to keep them away from their undesirable peers and to start anew. Such training and supervision would not be available if a term of imprisonment were to be imposed. 

33.  In arriving at this conclusion, I have not forgotten that, in sentencing, the factor of young age might pale into insignificance depending on the magnitude or prevalence of the offence. However, the present case is not one in which it is wholly disproportionate or inappropriate to impose a Training Centre or a Detention Centre order. While this case is one of robbery and, in the case of the 2nd and the 3rd Defendants, they have been convicted of robbing the same victim twice, the facts did not disclose any sophisticated operation. I also note that despite their numbers, Choi was never kicked or punched. In other words, these robberies are definitely not in the worst category.

34.  In my view, all three Defendants require training and discipline to bring them back onto the right track and to help them become useful members of the community. If they were to be left on their own, I reckon there would be a high likelihood that they would go down a track which has no return.    

The Sentences

35.  Therefore, I consider that it is in the interest of the community to have these Defendants trained and reformed rather than sending them to the prison. I accept the recommendations of the reporting officers.

36.  For the 1st Defendant, I sentence him to the Detention Centre in respect of the 1^st charge.

37.  For the 2nd Defendant, I sentence him to the Training Centre in respect of both charges.

38.  For the 3rd Defendant, I sentence him to the Detention Centre in respect of both charges.