HKSAR v. YIM HO FUNG

DCCC274/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 274 OF 2012

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

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

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

Reasons for Sentence

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

1.  In this case, the defendant, Yim Ho-fung, aged 17, faces two counts of robbery, contrary to section 10 of the Theft Ordinance, Cap.210, Laws of Hong Kong. He pleaded guilty to both counts and is convicted in accordance to the facts he admitted in court.

2.  Both offences took place at about 1 pm on 31 December 2011 at the Tai Po Waterfront Park Spiral Lookout Tower, New Territories.  At that time two ladies were practising Tai-chi with their handbags placed in front of them on the ground.  All of a sudden, someone pushed them from behind, as a result of which they sustained minor injuries on the back of their necks and lower backs. They then saw two or three males picking up their handbags and started fleeing towards the direction of Tai Po Industrial Estate.  They started giving chase, with the assistance of a civic-minded passer-by. 

3.  The three males ran into a construction site and rushed inside the back of a container before emerging from it again.  A civilian witness managed to intercept one of the males at the entrance of the construction site.  The other two, one of them the defendant, managed to make good their escape. 

4.  The two handbags were subsequently recovered in the construction site.  Inside the handbags there were some personal documents, electronic devices and also some cash.  Both witnesses confirmed that nothing had gone missing from their handbags.

5.  In an ID parade held on the 1st day of February 2012, the defendant was identified by the civilian witness as one of the robbers.

Sentencing Considerations

6.  Robbery is a very serious offence and the maximum sentence is life.  It is also an excepted offence for a person over 21, meaning that the sentence order for such offence cannot be suspended.  Furthermore, there are clear authorities to the effect that if the offence is a serious one, sometimes public interest would override individual interest of the defendant concerned.  Therefore, the defendant’s young age would not be an impediment for the court to consider a custodial sentence.  In fact, the court ought to consider a custodial sentence if it decides that public interest is paramount.

7.  For a robbery where no weapon had been used, there is very clear authority for sentencing.  The proper sentence should be imprisonment up to 4 years.  The present case is not the most serious of all robberies.  However, the following factors are aggravating factors:

i. the offence involved more than one person in its commission,

ii. both victims had suffered some injuries, albeit minor as a result.

8.  Nonetheless, in view of the defendant’s age, I consider the rehabilitative approach in sentencing should take precedence.  For this reason, I have called for a probation officer’s report and a report from the Commissioner of Correctional Services for his suitability to be detained by a Detention Centre and a Training Centre.

9.  I note that after the defendant had committed the present offence on 31 December 2011, he was arrested  again on the 4th day of February 2012.  He was released on bail on 6 January on condition that he was not allowed to leave Hong Kong.  On 16 January he was arrested again for an offence of theft (shoplifting).  Again he was released on bail.  On the 18th day of February he was arrested by the police yet again when he tried to leave Hong Kong for the mainland.  This may not be an aggravating factor in the offence itself but, in my view, that shows the defendant’s disdain for the law and the absence of remorse. 

10.  The defendant’s probation report sets out a detailed account of his background and I shall not repeat it in full.  After he came to Hong Kong, he had been living with his parents and other siblings.  He attended primary and secondary school in Hong Kong.   He was an under-achiever at school and had repeated Form 1 three times.  The record of his conduct was appalling.  There were numerous demerits and black marks.  Despite the effort of his mother and his elder sister, he had not shown any improvement.  He stayed out at nights against the advices of his family members.  He hanged out with his peers at game centres, dating girls, spending time in bars and even tried to take ketamine once.   He admitted to have triad affiliation, in fact had joined the calling for gang fighting for about 10 times. 

11.  The probation officer also found him evasive in recounting the present offences.  The probation officer was of the view that in view of his strong adverse peer affiliation and weak family control, open probation would not be effective in his case.

12.  The representative for the Commissioner of Correctional Services in his report also set out background similar to that stated in the probation officer’s report.  It was further revealed that apart from the conviction referred to earlier, on 20 October 2010, for a case of theft he had been put on superintendent’s discretion programme. Although it was not a conviction, it shows that his problem began well before his first conviction of theft in March 2012.

13.  The defendant’s lawyer submitted to the court that the defendant was gainfully employed, yet the report stated otherwise.  He had worked on an odd job basis in a warehouse but had not been under employment for a long time.  The officer responsible for compiling the report stated in clear terms, “Out of his bad association, his mood for employment was almost non-existent and he remained idle since March 2011”.  The report finally stated that he was mentally and physically fit for both detention in a Detention Centre and a Training Centre but was more suitable for detention in a Detention Centre.

14.  Both the Detention Centre and Training Centre are designed for the rehabilitation of the subjects. For a Detention Centre, the subject is to stay for 1 to 6 months, subject to an order of recall. The idea of a Detention Centre is to provide a short sharp shock to steer its subject into the right course. There the training normally involves hard physical labour.  For the Training Centre, the term of detention ranges from 6 to 36 months, subject again to an order of recall.  The difference is for the Training Centre, the subject would be trained for a trade, and after the term of detention there would be a 3-year supervision. 

15.  I am satisfied that in the present case a rehabilitative approach is more appropriate.  Having considered the defendant’s background, family, past behaviour, education and track record, I consider that the present case is more suitable for Training Centre. 

16.  The defendant had been idling for a very long time.  He had little education to speak of and his family, despite their concern, could exert very little influence on him.  Together with the defendant’s association with triad members, his experience in taking dangerous drugs and joining  the calling for gang fighting in the past, all these are indicative that he was at the threshold of life where he was about to engage in a long and slippery descend. Intervention in a more thorough manner is called for.   

17.  The Training Centre offered a more comprehensive programme.  It could train him for a trade so that he can be re-assimilated to the society after the training is completed.  I do appreciate that for a Training Centre Order the defendant would have to stay for at least 6 months and subject to supervision for 3 years. I believe that this would be beneficial and necessary in his case in order to help him to be back on the right track.  I therefore make an order that for the present two offences, the Defendant be sentenced to Training Centre.