HKSAR v. SAJJAD SHAHROZ AND ANOTHER

DCCC155/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 155 OF 2012

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Reasons for Sentence

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1. D1 and D2 are facing a joint charge of attempted robbery, 2nd charge. D2 has pleaded guilty. D1 has pleaded not guilty and is convicted of the charge after trial. D1 has been acquitted of another charge of theft after trial, 1st charge.

The facts

2. Full particulars of the offence are set out in my reasons for verdict, and the facts admitted by D2.  The facts can be summarized as follows.

D1

3. On 26 November 2011 at about 8 pm Miss Tsang Hor-ying, Shirley, PW2, was walking at the pavement near Nam Cheong Park, Sham Shui Po. She was holding her mobile phone in her hands.  When she walked past D1 and D2, D1 approached her and tried to snatch away her phone.  PW2 did not let go and held the phone firmly.  They were vying with each other for the phone.  When D1 could not take the phone, he used his hand to grab hold of PW2’s neck.  At this juncture D2 shouted and gave a signal to run.  D1 and D2 then fled together.

4. The incident was witnessed by some police officers who were laying ambush there.  They chased and arrested both defendants. 

5. PW2 only suffered minor injury with mild redness on her left arm.  No mark was found on her neck.

6. Under caution, D1 claimed that he only used hands to snatch the phone.  He denied grabbing hold of PW2’s neck or hand.  He admitted that D2 was acting as a lookout there.  D1 was responsible for the snatching. 

7. At the trial D1 denied grabbing the victim’s hand or neck.  However, I found that he did use force to grab PW2’s neck and hand in order to take away the phone from PW2. 

D2

8. D2 admits that at a distance of 2 metres he saw D1 use his hand to grab PW2’s neck and use the other hand to snatch her phone. About 10 seconds later, D2 gave signal to D1 by shouting and waving his hand. Without PW2’s phone, D1 and D2 fled together and they were later arrested.

9. In a video interview record, D2 admitted that D1 asked him if he had money as D1 was in need of money.  D2 replied in the negative.  When PW2 walked past, D1 snatched her phone.  D2 knew that if D1 was able to take away the phone, he would sell the phone and give half of the proceeds to D2.

10. Both defendants are aged 16 and 17 respectively.  Although section 109A of the Criminal Procedure Ordinance is not applicable, as the offence is an excepted offence, I have nevertheless called for pre-sentence reports to consider the suitability of detention of the defendants in detention centre, rehabilitation centre and training centre. However, I have warned the defendants, especially D1, that it does not mean that I shall follow the recommendations.

11. The reports have been obtained and I have considered the reports carefully.  According to the report, D1 is medically unfit for detention in a detention centre but fit for detention in a rehabilitation or training centre.  The assessment officer who prepared the report considers that a period of disciplinary training coupled with statutory supervision is beneficial to the reformation of D1.  He also considers that rehabilitation centre is more suitable for D1. 

12. D2 is fit for detention in detention centre, rehabilitation centre or training centre.  The assessment officer who prepared the report considers that disciplinary training is beneficial to D2 and he recommends an order for detention centre.

Background and mitigation

D1

13. He is now 16.  He was born in Hong Kong.  He was studying in Form 3 before his remand.

14. In mitigation, Ms Wong, counsel for D1, asked this court to call for a community service order suitability report which was refused by the court in view of the serious nature of the offence.

15. Ms Wong has handed up mitigation letters of D1 himself, his parents, and his class teacher, and some certificates and awards of D1.  What can be gathered from the information before me is that D1’s performance and conduct in primary school was not bad.  However, when he was promoted to secondary school in 2001, he failed to catch up with school curriculum.  He started to loiter with undesirable characters in amusement game centres and public parks.  He became rebellious in the second term of Form 2 and was always late for school.  For his misconduct at school, 14 demerits were given to him.

16. He has no criminal record.  However, in September 2011 he was cautioned by a police superintendent for an offence of theft.  Ms Wong urges this court to consider that D1 though convicted after trial has admitted attempted theft at the beginning of the trial.  She tells the court that D1 denies only one sentence in the pre-sentence report which says that it was D1 who suggests to D2 to rob with him.  She says in fact it was a joint decision. 

17. It is submitted that D1 is now very remorseful and he will study hard.  Ms Wong asks the court to pass a lenient sentence.

D2

18. D2 is 17.  He was born in Pakistan.  He came to Hong Kong in 2006 with his mother and siblings to join his father. He has a clear record.  He was a Form 3 student.  From the background information before me, when he was promoted to Form 3, he failed to catch up with his studies and started to mingle with dubious native peers. 

19. In mitigation, Mr Wong, counsel for D2, says D2 is now remorseful and is prepared to accept the order of detention in a detention centre.

Sentence

20. Robbery, be it an attempt or a full offence, is a serious offence.  A term of imprisonment is usually called for.  When the two defendants committed the present offence together on a lone woman, the offence became more serious.  It was an unarmed robbery, but actual violence was used. D1 grabbed the arm and neck of the victim.  Fortunately, no serious injury was caused to the victim.  However, no doubt the victim was in great panic. 

21. If imprisonment is appropriate, I would have taken not less than 3½ years’ imprisonment as the starting point.  Section 109A of the Criminal Procedure Ordinance is not applicable because robbery is an excepted offence.  However, given the age of the defendants and their background, the court still needs to consider what is the best way to deal with them, given the nature and circumstances of the case and the interest of the community.  D1 and D2 were indeed very young at the time of the offence.  However, this factor should pale into insignificance because of the seriousness of the offence.

22. Having considered all the circumstances, I do not think that it is in the interest of the community and the defendants that they should be sentenced by way of imprisonment.  However, a non-custodial sentence is inappropriate as it cannot reflect the seriousness of the offence. A period of disciplinary training followed by a statutory supervision for both of them would serve not only the defendants’ own interest but also the interest of the community. 

23. The question remains whether they should be trained in a detention centre, rehabilitation centre or training centre.  The three institutions have very different regimes and period of detention is quite different.

24. For D1, he is medically unfit for detention in a detention centre because of history of asthma.  The question is whether rehabilitation centre or training centre is the best option.  Of course due weight should be given to the recommendation of the assessment officer.  

25. D1 was convicted after trial, in my view, he only shows verbal instead of genuine remorse.  He was the one in the joint enterprise to use violence on the victim.  When D1 and the victim were vying for the phone, the victim must be in great panic. 

26. For an order of detention in rehabilitation centre, the young offender will be detained for between 2 and 5 months, followed by a second phase of programme of residence in a halfway house.  The period of possible detention is indeed very short, compared to the imprisonment term D1 has to face if he were an adult. 

27. It should also be noted that section 4(2)(e) of the Rehabilitation Centre Ordinance, Cap.567, provides as one of the criteria for detention order that the suitable candidate is apparently an offender for whom a short term custodial sentence is appropriate.  If D1 is sentenced to imprisonment for the present offence, the term of custodial sentence definitely will not be a short one.  On the other hand, D1 is not good at academic performance.  The vocational training which can be provided at a training centre will provide him a skill to secure stable employment in the future. 

28. I am also of the view that rehabilitation centre order would not be sufficient to impress D1 the seriousness of the offence and bring him back to the right track.  On the contrary, the detention in training centre would serve these purposes.

29. I am aware of the relevant consideration for an order of detention in a training centre as stated in HKSAR v Wong Chun Cheung FACC9/2000.  I am satisfied that training centre order is in the interest of the community and D1.  On Charge 2, I order detention of D1 in training centre accordingly.

D2

30. His plea of guilty shows his genuine remorse for his wrong.  In committing the offence he only acted as a lookout.  He had not committed any offences before.  A period of disciplinary training would be beneficial to him.  In the circumstances, on Charge 2, I order detention of D2 in a detention centre.