HKSAR v. FOK TSZ YU AND ANOTHER

DCCC714/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 714 OF 2011

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Reasons for Sentence

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1.  In this case, both defendants have pleaded guilty to one charge of attempted robbery. They have agreed the facts and I have convicted them of that offence. The offence was committed on the 31st day of May in Kowloon.

2.  The facts that have been agreed is that the victim was walking home in the early hours of the morning of 31 May.  She was in Wang Chiu Road in Kowloon Bay.  When she felt someone’s hand on her shoulder, she turned around and saw a person.  This male said he was robbing her and tried to snatch her handbag.  She held onto her handbag and cried out for help.  There was a struggle and she fell to the ground.

3.  At this point, the 1st and 2nd defendants were involved in violence on the victim.  The two of them hit her for about 20 seconds and she was attacked with a pair of scissors.  The robbery failed and the men made away.

4.  The 1st and 2nd defendants were located.  The 1st defendant admitted robbing the lady and disposing of the scissors. The 2nd defendant was arrested. He said the 1st defendant started the robbery; he was only a lookout.

5.  Later on, the defendants made more full admissions.  The 1st defendant admitted that it was he who started the robbery.  He brought scissors with him for the robbery and instructed the 2nd defendant to snatch the handbag.  He pointed the pair of scissors at the victim’s neck and declared the robbery.  He attacked her with the scissors twice.  They fled and he disposed of the scissors.

6.  The 2nd defendant also said that the 1st defendant had initiated and planned the robbery; the 1st defendant brought the scissors with him for the purpose of the robbery; the 1st defendant instructed him to snatch the handbag and that they fled and exchanged clothes afterwards; and as I said, nothing was actually taken from the victim.

7.  She was taken to hospital.  She was found to have bruising on her right knee and a laceration on the dorsal area and left forearm.  Fortunately, the injuries she sustained in this distressing attack were fairly minor.  No doubt that is due to her own ability to fight back.

8.  Nevertheless, this is a serious violent robbery that showed a wilful disregard for the safety, security of the victim.  I will describe it as a vicious attempted robbery.

9.  The defendants have made what I call a clean breast of it.  They both admitted their responsibility in full and have made no attempt to in any way resile or retreat from the crime they committed.

10.  The defendants’ antecedents have been admitted.

11.  The 1st defendant is 21 years old.  He has some previous convictions.  In 2010 he was given a suspended sentence for making off without payment.  In December 2010 he was sent to a Drug Addiction Treatment Centre.  Subsequently, in June of 2011 he went to prison for 7 days for shoplifting and breach of a suspended sentence.

12.  Now, I am told that the 2nd defendant is 19 years old and has a clear record.

13.  Now, I turn to the mitigation that was advanced.

14.  As far as the 1st defendant is concerned, I was told he is educated to Form 2 level.  He had worked for Cable TV as an outdoor installation workman, then later for Cathay Pacific as a ground worker.  He worked as a waiter and he had been unemployed since August of 2010.  He had lived with his girlfriend and is single.  I was given details in mitigation of his previous convictions.

15.  I am told that he has shown remorse and was co-operative with the police investigation.  He attributed his commission of the offence to his own weakness and financial difficulties.

16.  It was noted that the defendant had up until 2010 lived a normal life and had a clear record, so this period of lawbreaking was unusual for him and out of character.

17.  Nevertheless, the defendant has shown remorse, accepts this is a serious offence and that a substantial term of imprisonment should be imposed upon him.  He is over the age of 21, so there is no other real option available to him.

18.  As far as the 2nd defendant’s mitigation is concerned, it became clear during the course of mitigation that the defendant suffered from some kind of mental incapacity or intellectual problem.  This had been investigated some years ago and so I called for reports from the Correctional Services Department, the Young Offenders’ Panel, and also from a clinical psychologist to see the extent of the defendant’s problem.

19.  The psychologist’s report is of interest.  It undoubtedly shows that this defendant has problems.  He is now aged 20.  At school he was observed to be a slow learner.

20.  His first assessment was in October 2001 at the Kowloon Child Assessment Centre.  His verbal skills were borderline and visual/spatial skills below average, but the defendant carried on through education and he went into vocational training in 2009 to become a hairdresser.  His employment history consisted of night jobs as a waiter in karaoke, shop attendants at convenience stores and petrol stations, but he had been unemployed for some time between these jobs.

21.  The defendant was assessed on the Wechsler Adult Intelligence Scale.  He had an IQ of 75 which placed him in borderline range, a verbal IQ of 64 and a performance IQ of 86.  He is exceptionally weak in the form of general knowledge and conceptualising relationships between objects.  His ability in expressing the reasons for common practices and social norms is below average.

22.  He is described as an intellectually borderline adult, having a mental age of above 12 years.  He can perform activities of daily living independently.  He has rigid cognitive functioning characterised by weak abstract reasoning and difficulty in considering problems from alternative perspectives.  I am told he does not indicate psychopathic tendency towards aggression and impulsivity.

23.  The clinical impression was that, given a mental age of above 12 years, the defendant is able to differentiate right from wrong and understand what happened in the offence.  He had weak social judgment, feelings of inferiority and self-alienation, weakness in problem orientation and verbal expressive skills.  He is said to be prone to have difficulty in asserting himself under peer pressure, and it is especially challenging for a young adult with below average intelligence.

24.  Now, the clinical psychologist had some recommendations and inclusions.  He said the defendant is prone to have difficulty in asserting himself under peer pressure and that is a factor that contributed to this offence.  He could differentiate right and wrong and understand what happened.  He should be able to shoulder the responsibility of his actions.

25.  The psychologist recommended coaching in a structured environment might facilitate the defendant’s learning.  He needed various psychotherapy focusing on assertive training and improving family relationships.  The defendant was found to be mentally and physically fit for detention in a training centre.

26.  I obtained a report from the Young Offenders’ Assessment Panel as to whether there would be any benefit for the defendant in this case.  They described the defendant as an easily led and loosely disciplined teenager with a poor law-abiding concept.  He had a close association with triad elements and had an undisciplined life.

27.  The panel has no doubt he is in dire need of a period of long-term character training and a disciplinary setting to help him modify his social values and behaviour, and they consider the training centre programme to be appropriate for him.

28.  Now, the question arises as to how I should approach sentence for these defendants on the basis of the facts they have admitted, the offence they committed, and the mitigation that has been advanced and can be seen through the reports that are obtained.

29.  The defendants committed the offence together. It is a very serious offence of attempted robbery involving the actual use of violence against the victim and actual injury to the victim.

30.  The defendants are young men, 21 and 20 years old.  There are clear guidelines as to how a court should approach sentencing in a case of this nature, and the guideline would suggest a sentence of a starting point between 6 and 7 years’ imprisonment for an offence of this nature.

31.  I turn to the 1st defendant.

32.  He, as I have said, is a young man, 21 years old, who in the last year or so, has, one would describe, gone off the rails. The sentences that he did receive in the past year-odd seem to have made no difference to his attitude.  Background reports suggest that he was unaware of the serious consequences of this misdeed.  He has shown remorse and accepted the inevitability of a sentence of imprisonment.

33.  Taking all these factors into account, I consider that I should, in respect of the 1st defendant’s involvement in this offence, take a starting point of 6 years’ imprisonment.

34.  I reduce that to 4 years’ imprisonment for his plea of guilty, so his sentence would be one of 4 years’ imprisonment.

35.  I turn now to the 2nd defendant.

36.  Is there any basis on which I can properly depart from what would be the normal tariff sentence in respect of him?  He is younger and is eligible for the programmes run by the Correctional Services Department for peoples of his age.

37.  However, there is clear authority that that would be an inappropriate sentence in a normal case of a person of his age who committed a very serious offence such as this.

38.  Now, I had looked at the defendant’s assessment of his maturity in the psychologist’s report, which simply assess him as being over 12 years old in terms of his mental age, and I had wondered whether that was a factor that might be described as “extreme youth”, which must as a matter of logic apply to a person’s actual assessed mental age as opposed to his actual assessed physical age, and this “extreme youth” can be described as a mitigating factor, even in a very serious offence.

39.  It may well be the report of the clinical psychologist does not go that far.  It simply describes him as having a mental age of over 12.  Nevertheless, the defendant does suffer from some kind of mental incapacity.  This is a fact that cannot be ignored because it affects both the moral culpability of the offender and the effect of concepts of deterrence on the mind of the offender.

40.  There is also clear authority that a person with below-average intelligence may benefit in terms of sentencing.  The defendant clearly can distinguish between right and wrong - the report says so - but he may not be quite clear as to how wrong it is.

41.  Now, I consider that the defendant’s mental incapacity, his assessment of below average intelligence is a factor that must be considered in sentencing him.  Now, the question is:  to what extent would he benefit from it?

42.  The report of the clinical psychologist supports the propositions that the defendant’s moral culpability is reduced by his incapacity.  He is easily led.  He is subject to peer pressure.  He cannot assert himself under peer pressure.

43.  Also, he, although able to differentiate right from wrong, cannot do it to an extent that an adult can.  These are factors that led him into the commission of this offence and that is clear from the admissions both defendants made to the police.  His moral culpability is less.

44.  The second factor is one of deterrence.  To what extent will deterrence be affected on a person such as this?  What would the lengthy sentence achieve?  It may be the defendant would not be capable of understanding the nature of his imprisonment in the same way as a person with full adult functioning would do so.

45.  But I do have another option in sentencing this defendant.

46.  Now, the expert panel assesses the defendant as being in dire need of long-term character training to modify his social values and behaviour.  This may have the benefit of reducing or eliminating the risk of this defendant re-offending, which may well protect the public more than removing him from the streets for a period of time.

47.  Now, I am aware that I am dealing with this defendant in a radically different way to his co-defendant, but justice must be applied individually, even where defendants have co-operated in crime.  The defendant’s individual personal circumstances are radically different than his co-defendant.

48.  For those reasons, I consider that the appropriate sentence for this defendant on this charge is that he be detained in a training centre, and that is the sentence I impose.