CRIMINAL CASE NOS. 153 AND 286 OF 2011
COURT: The 1st and 3rd defendants were found guilty by unanimous verdict of a jury of one count of conspiracy to commit robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210 and section 159A of the Crimes Ordinance, Cap. 200. The 2nd and 3rd defendants, again by unanimous verdict of a jury, were found guilty of one charge of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210.
` The facts showed that the 3rd defendant, who from his evidence was the initiator and organiser, had a scheme for ordering telephones through the PCCW hotline in names other than his own, and when delivery was arranged at an address other than his own, would rob the delivery worker and later would dispose of the telephones for cash.
The cash obtained would be shared with any accomplice or helper whose aid was needed to meet the delivery worker and take him to a quiet spot, where the PCCW items ordered, cash from earlier deliveries and the personal cash and property of the delivery worker would be taken at knifepoint.
This was the modus operandi of Charge 2, where the robbery was effected. In that robbery the 3rd defendant shared the cash with his helper, the 2nd defendant, and also, for some reason, gave a share of the cash to the employer of the 2nd defendant, although it was not clear from the evidence why that should be the case.
The delivery worker believed that a knife was put to his throat, although when he actually gave evidence in court, said it could have been a key, as was suggested by the 3rd defendant.
In respect of the 1st charge, the 3rd defendant chose as a helper the 1st defendant, but the police, who were investigating the initial robbery in September 2010, were able to forestall the second robbery planned for November 2010. A police officer was appointed to play the role of a delivery worker. D1 and D3 were arrested shortly before that robbery was due to occur, and from information obtained from the 3rd defendant’s Video Interview, the 2nd defendant was arrested the following day.
Police found a table knife with a serrated edge in the pocket of the 3rd defendant’s trousers.
All three defendants made admissions in their Video Interviews which amounted to full confessions to the charges which they faced.
The 3rd defendant has a very poor criminal record, but D1 and D2 had clear records. Accordingly, I sought a background report for each of them, as well as Training Centre and Detention Centre reports.
The 1st defendant, who is now 19 years old, and the 2nd defendant, who is aged 22, have roughly similar histories: a weak family relationship, inadequate supervision, indifferent but not really poor behaviour at school, attendance up to Form 5, but with no real academic success, and thereafter, short spells of training or work without perseverance, and those factors combined to make them vulnerable for exploitation for criminal ventures.
The 1st defendant lived with foster parents from the age of 7 because his mother suffered from postpartum depression. In consequence of the lengthy separation, the 1st defendant had little support from his own family, and when eventually he left the care of the foster family, he went to live for a short period at a Youth Outreach hostel. Later he lived at the home of a friend, apparently without the knowledge of the friend’s parents.
He technically completed Form 5, but his examination results were not satisfactory. After he left school his attendance at work was sporadic, but he managed to stay out of trouble until this particular episode when, under the influence of the 3rd defendant, he agreed to take part in the robbery the subject of Charge 1.
During the remand period the father of the defendant has been visiting him, and the parents have indicated that they would like to restore their son to his home following his serving his sentence for this offence.
The reports that I obtained, as well as setting out the personal particulars in detail, indicate that the 1st defendant is suitable for placement in either Training Centre or Detention Centre, but the reporting officer recommended Detention Centre as being the more suitable course for this defendant.
Although normally I would consider an immediate custodial sentence of imprisonment for this type of offence, I do note that the 1st defendant, despite his family problems, has managed to survive thus far without acquiring a criminal record, and I consider that given his age, the fact that this was his first offence, that he has been in custody since his arrest 15 months ago, and accepting that this was not the most serious type of robbery, it is worth at least one attempt to rehabilitate the 1st defendant without sending him to gaol.
For these reasons, having considered the options open to me very carefully, I am prepared to accept the officer’s recommendation for placement in Detention Centre, and I have been advised that there is a place available for him. I am satisfied that the strict disciplinary training of the Detention Centre program and the subsequent supervision,to which the 1st defendant would be subject on completion of the term in detention,offers this defendant the best hope of rehabilitation.
Accordingly, I make a Detention Centre order in respect of the 1st defendant.
The 2nd defendant came to Hong Kong at the age of 7 from China. Both his parents needed to work, and consequently there was too little supervision of the 2nd defendant. He left school at the age of 18, having attended Form 5 studies, but having failed to complete them. He worked intermittently and without enthusiasm for short periods. He apparently got into financial trouble after he borrowed some money from a finance company.
In 2009 he left his home after an argument with his family. He was provided thereafter with lodging by his employer, for whom he worked as a casual decoration worker. Thereafter he had irregular contact with his family members. After leaving home his only contact with his family members appear to be attempts to borrow money from his family. I note that the 2nd defendant haa been on bail from December 2010 and does not appear to have become involved in other criminal behaviour during that period.
Because he is aged 21, the 2nd defendant was too old for the Training Centre program, but he has been ruled mentally and physically fit for detention in Detention Centre, and there is a place available for him.
Again, this is an offence for which I would normally consider an immediate sentence of imprisonment, but despite his less than satisfactory upbringing and various disadvantages, this defendant too managed to reach the age of 21 without acquiring a record, and after careful thought, I believe that rehabilitation is a real possibility if he is given one chance.
The disciplinarily strict nature of the program, the emphasis placed on family reunion, and the supervision which follows the completion of the residential program are all factors which could benefit this defendant and give him a chance to rehabilitate himself. I consider that his offence is serious, but not the most serious of its kind. I note that he was neither the initiator or the organiser, and I am of the view that a Detention Centre order is appropriate as punishment.
Accordingly, I make a Detention Centre order in respect of the 2nd defendant, having noted that there is a place available for him on the Detention Centre program.
The situation is other with the 3rd defendant. He has an extremely poor criminal history. He has previous robbery offences, two in 2002, as well as a wounding with intent to do grievous bodily harm, and a further robbery offence for which he was sentenced to 8 years’ imprisonment, a matter that was dealt with in the High Court.
His role in these offences was as organiser and initiator, and his role was made worse because he directed his attention to younger companions who at that time had managed to avoid criminal convictions. He therefore appears quite plainly as a corrupter of D1 and D2. Further, I have gained the impression that if it had not been for the 3rd defendant, D1 and D2 would have been amenable to pleading guilty to the charges that they faced, and certainly I note that D1 initially indicated that he was prepared to plead guilty, although he withdrew the plea at a later stage.
The only person who might have benefited from that change of plea was the 3rd defendant, whose defence depended in some measure on D1 and D2 supporting his account of what had happened. Although I accept that D3 at various times tried to exonerate D1 and D2 by saying that they had no knowledge of the robbery or his intentions, it appears to me that overall he was trying to save himself at the expense of D1 and D2, and his interest in saving himself ensured that a simple trial which should have taken a few weeks lasted for a very much longer period.
In assessing the proper sentence for the 3rd defendant, I take the view that an immediate custodial sentence is required. I accept, as I said, that this is not the most serious robbery of its type, but nevertheless it must have been a terrifying experience for the delivery worker the victim of Charge 2, and whether it was a knife or a key that was applied to his throat, the fear would have been the same.
There was no cogent mitigation put forward on which this defendant can rely. Further, his previous record makes it clear that he was not a novice in these offences. He fully understood what he was doing when he initiated the scheme.
I take 6 years’ imprisonment in respect of each of Charges 1 and 2 as the appropriate sentence. I order that 2 years of the sentence on Charge 1 be served consecutively to the sentence on Charge 2. I do that after considering totality.
That makes a total sentence of 8 years’ imprisonment.