HKSAR v. LAM CHI FAI

DCCC334/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 334 OF 2011

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Reasons for Sentence

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1.  The 2nddefendant has pleaded guilty to Charge 2 and was convicted, that charge being assault with intent to rob, contrary to section 10 of the Theft Ordinance, Cap.210.

2.  Particulars are that the 2nd defendant with the 1st and 3rd defendants and others assaulted a Mr Law, who is PW2 in the facts, with intent to rob him.  The Summary of Facts are very straightforward but before I begin with that, the 2nd defendant did face Charge 1 but it was left on the court file.

3.  The facts are very straightforward on that early hours of 21 February this year at about 3.30 two prosecution witnesses (the victims) were walking near Tuen Mun Cultural Square.  They were followed and then approached by the defendants and others.  The group did assault first PW1 and his Playstation was stolen.  PW2 was also assaulted but he lost no personal belongings. 

4.  The group fled but the 2nd defendant as well as the other defendants were arrested not long after nearby.  PW1’s Playstation was found in the 1st defendant’s pocket and possession.  The 2nd defendant was arrested and admitted under caution that he was present at the scene when the second witness was assaulted.  Luckily the second witness was not seriously injured. He sustained some abrasions on his left forehead and forearm.             

5.  The 2nd defendant was 18 at the time of the offence, now 19.  He had a previous clear record.  Because it was a serious offence, assault with intent to rob, and the defendant was at the time of plea 19, I called for a range of reports.  I will not repeat the contents of the reports. 

6.  The probation officer, after considering the 2nd defendant’s background; remorse; plea; says that he is suitable for probation and would accept him for probation with certain conditions.  The defendant is also mentally and physically fit for either Detention Centre, Training Centre or Rehabilitation Centre.  After assessing the 2nd defendant, he was deemed most suitable for detention in a Detention Centre.  Those are what I consider to be my options.

7.  What I can see from the reports and mitigation is that the defendant was never a particularly brilliant student but several factors would I can see affect his education.

8.  Firstly, his mother unfortunately contracted cancer in the year 2003, had I am sure to go through a series of treatment and up to now is still attending check-ups every 6 months.  I assume that means the defendant’s mother is in remission but obviously closely monitored.  Because of her illness and the fact that the defendant’s father would have been working in the defendant’s formative years of education, he had perhaps less discipline or control from his parents which would have led to very average results. 

9.  In the year that he took his HKCEE exams, his father, before he took his exams, unfortunately suddenly died.  The defendant then went on to fail quite understandably his exams.

10.  Despite poor academic results, from both reports I can see that he has worked since leaving school.  The probation officer has spoken to present employer as well as past employer.  The defendant has been working as a salesman in shops.  Previous employer in an upmarket fashion boutique was surprised the defendant committed this offence.  In her view he, whilst working in her shop, was hard working, honest with good social aptitude.  His present employer was also satisfied with his work performance.  She had no real complaints except he was occasionally late.         

11.  What concerns me more is the defendant’s own attitude to his behaviour.  He is very disappointed that he has hurt his mother and his elder sister.  He realises that he has caused them great disappointment but nonetheless his mother has been to visit him every day he has been in remand. She tells the officers and the probation officer that she is shocked at the commission of this offence.  He is a filial son and gives her half of his salary to support the family. 

12.  The reports demonstrate that the defendant has not any triad affiliation.  In fact there is no lead up to this trouble. For example, there is no evidence the defendant has been hanging around with bad peers or triads leading inevitably to trouble.        

One can say this offence is out of character. The 2nd defendant has explained that that night before the offence he and this group had been drinking on the beach. There was no plan to go and rob victims as far as he was concerned, but he did follow this group and was part of this offence, but I can accept, as was submitted on the last occasion, that he played a lesser role. I can accept that he did not instigate the offence.

13.  I have received three letters of mitigation, one from the defendant’s mother, his aunt and himself and I have taken them into account. 

14.  I have taken into account when coming to my decision as to what sentence I should impose the following. 

15.  The defendant was 18 at the time of the offence, he pleaded guilty which shows his remorse and I can believe that his remorse is sincere.  He had a clear record.  In fact, one can go as far as saying that this was out of character and defendant was naive in following this group.  

16.  He has until now a good job history despite leaving school with poor grades.  He has a good family support from his mother and his sister.  He has spent 16 days in custody.  He knows now what it is like to lose one’s liberty. 

17.  I am going to give the defendant a chance.  You are allowed one mistake and you have made it.  I will give you a chance and impose a probation order.  This is a lenient sentence.  Please do not disappoint the court, your mother or the probation officer.  If you do and commit any offences whilst on probation or do not comply with the conditions I will impose or the probation officer is not happy with your performance on probation, I will discharge this probation and I have the discretion to re-sentence you.  If I re-sentence you, it will be either Detention Centre or Training Centre.  Do you understand?

DEFENDANT: Yes.

18.  Stand up please.  You will for Charge 2 be sentenced to probation, 12 months.  Two conditions you must comply with:

1. You will study and work and reside as directed by your probation officer.

2. Secondly, you will obey all lawful and reasonable directions from this probation officer as to your association with any person or groups of persons.

19.  I have made a note here that I warned you of the consequences of breaching probation.  I will also call for a progress report.  I will adjourn 4 months for a probation officer’s progress report, that is 6 January next year.  It will be before me wherever I am sitting at 9.30 in the morning.  Do you understand?

DEFENDANT: Yes.