HKSAR v. AU YEUNG WAI MAN

DCCC1385/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1385 OF 2011

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Reasons for Sentence

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The charge

1.  The defendant was charged and pleaded guilty to a count of robbery.  Such offence is contrary to section 10 of the Theft Ordinance, Cap.210.

The Facts

2.  The facts of this case can be summarised as follows.

3.  Hung Chung-kuen (“PW1”) and his elder brother Hung Wai-kam agreed to contribute HK$200,000 and HK$250,000 respectively to rebuild their ancestral house in the mainland.

4.  In October 2011, PW1 came to know a male called “Sze Ngan-chai” who claimed that he could get PW1 a better rate of exchanging Hong Kong dollars to Renminbi.

5.  On 10 November 2011 at about 9.15 pm, “Sze Ngan-chai” called PW1 and informed him that he had the money with him for the exchange.

6.  As instructed, PW1 brought along with him cash of HK$450,000 which was wrapped in a black plastic bag and placed inside a paper bag.  He then arrived outside Kingswood Richly Plaza.

7.  Whilst waiting, PW1 felt that the said paper bag he carried was suddenly being snatched by force by the defendant. 

PW1 then pulled the paper bag to himself. A struggle ensued.

8.  At this juncture, an unknown male (WP1) rushed towards PW1 and sprayed something on him.  PW1 stepped back.  The said paper bag held by him was torn and the pile of cash inside the black plastic bag fell off.  The defendant then took away the pile of cash and fled with WP1 towards different directions. 

9.  Whilst chasing after the defendant, PW1 saw the defendant had contacts with another unknown male (WP2), who was riding a bicycle. 

10.  The incident was witnessed by a passer-by (PW3) who made a police report and guarded the money which was left behind at the scene.      

11.  Shortly, the police officers arrived at the scene and saw the defendant running nervously.  The defendant was eventually subdued.  PW1 identified the defendant to be the person who snatched away his money. 

12.  The defendant was then arrested for robbery.

13.  Under caution, the defendant claimed that it was “Ah Pau” who had asked him to help in snatching that stuff from PW1, but he did not know there was money inside that stuff.

14.  Neither the plastic bag nor the money was found on the defendant.  PW1 sustained no injury during the robbery and  recovered HK$100,000. 

Background and mitigation of the defendant

15.  The defendant has a clear record.  He was almost 17 and a Form Four student at the time of the offence.

16.  According to his ex-classmates and family members, the defendant was a kind person by nature.  Due to adverse influence by the undesirable peers and quite out of character, he committed the present offence.  They begged for leniency on the defendant’s behalf.    

Authorities on robbery sentence

17.  Robbery is a serious offence, especially an armed robbery, which would almost inevitably warrant a long prison term in normal circumstances.  The maximum penalty for robbery is life imprisonment.

18.  In R v Yau Kwok Tung [1987] HKLR 782, where a couple was robbed by two culprits in the early hours of the morning, cash was taken and a necklace was snatched as a result. Roberts CJ said:

“A sentence of 4 years, in the circumstances of this case, is at the top end of the tariff for robberies where weapons are not displayed. Nevertheless, the offence took place at night, the victims were frightened and we do not regard it as so manifestly excessive that it would be proper for us to interfere with it.”

19.  In HKSAR v Ting Chiu and Lau Cheung Ling, CACC174/2003, an unarmed robbery was committed on two victims by four culprits during midday.  Little physical violence was applied and the value of the property robbed was relatively minor.  The Court of Appeal held that the starting point should be 4 years.

20.  Robbery is an excepted offence.  This court is aware that the restriction on imprisonment of young persons under section 109A of the Criminal Procedure Ordinance, Cap.221, would therefore not apply.

21.  The present case was committed at night time.  Minimal violence was used.  This court would treat it as a single case of an unarmed robbery committed by the defendant and two  who are accomplices at large.  The money involved was HK$450,000 and the actual amount being stolen was in the sum of HK$350,000. 

22.  The defendant was a Form Four student and almost 17 at the time of the offence.  Young as he is but not of extreme youth, nevertheless, he has a clear record and had been detained for five months by now.

Training Centre report

23.  It is noted that to call for reports in serious cases would normally be unusual, but sentencing is an art, not a mechanical exercise, and must be tailored to the case.

24.  Given the nature of the offence, the background of the present case and that of the defendant, the desirability of rehabilitation in settings other than a long-term imprisonment and public interest, this court thinks it appropriate to call for a Training Centre report and has not ruled out the possibility of imposing a Training Centre order, which was described as the last resort before sending an accused to prison  (see R v Chan Suet Ngan, HCMA322/1996 (unreported)).

25.  The background report prepared by the officer of the Correctional Services Department revealed that the defendant was brought up in a working-class family with himself ranking the second amongst three siblings. His father was a construction worker and was the main supporter of his family. Due to poor school performance, the defendant was required to repeat Form Four in September 2011 and yet he maintained his loose learning attitude and lifestyle. 

26.  During that period of time, the defendant came to know an undesirable peer nicknamed “Ah Pau”.  Under the temptation of easy profits offered by “Ah Pau”, the defendant had engaged in debt collection activities with him.  He was paid $300 on each occasion. 

27.  Driven by his waywardness and greed, coupled with the influence of “Ah Pau”, the defendant eventually got involved in the present offence.  The defendant claimed that he understood the gravity of the charge and had to shoulder the legal responsibilities.  He promised that he would stay away from his undesirable peers and secure a stable job in future.

28.  The defendant’s father showed concern for him.  He admitted that he had little knowledge of the defendant’s outside merriments and linkage as he was busily engaged in his work, but he promised to render the defendant support for his rehabilitation.

29.  Based on the information available and after general assessments by the CSD of the defendant’s behaviour and attitude whilst on remand, the defendant was considered mentally and physically fit and suitable for detention in a Training Centre.  For the interest of the defendant’s reformation, the CSD was of the view that a period of disciplinary training, coupled with a term of statutory supervision, is recommended.               

Training Centre or Prison

30.  It is noted that Training Centre is designed to provide facilities for the training and the reformation of  offender.  The training in a Training Centre should not be considered as the soft option.  As in AG v Fong Ming Yuen [1989] 2 HKLR 177 and 181, Silke VP explained, 

“The sentence passed by the judge does entail a deprivation of liberty. In effect a custodial sentence. When the Commissioner of Correctional Services decides, it is at his discretion, that the Respondent should be released after a period (not?) exceeding three years there will be a further period when the Respondent will be under the strict supervision of officers of the Correctional Services Department. He will also be subject to recall to the Centre if he misbehaves during the supervision period.

It is in the public interest and in the Respondent’s own interest that his eventual reintegration - for he must at some point start to live out his life again in the wider world – into society be a gradual and assisted one.

The sentence passed and pursuant to which the Respondent has already undergone several months of training will bring home to him the gravity of his offence and should greatly assist, by its nature, in making him a useful member of the community.”

31.  Section 4(2) of the Training Centres Ordinance, Cap.280, provides that an accused who is sentenced to a Training Centre will be detained for not less than six months and not more than three years.  In practice, inmates spend on average 18 months in detention (see Wong Chun Cheong v HKSAR [2001] 4 HKCFAR, 12 and 16).              

32.  The time when an accused is considered suitable for release would very much depend upon how he responded in the Training Centre.  In R v Cheung Wing Wai and others [1993] 2 HKCLR 139 and 142, Bokhary JA said,

“It must be remembered that detention in a training centre can be for up to three years and that even then there can be post-release supervision for up to another three years thereafter. The principal purpose of detention at a training centre is of course rehabilitation. But there can be no doubt that rehabilitation under such circumstances carries with it considerable punitive and deterrent elements.”

33.  The defendant in our case is obviously in need of a period of disciplinary training.  Training Centre will afford him the best chance of reforming himself and to lead a law-abiding life.  Such training will not only benefit the defendant but will also be in the interest of the community. It is not at all a lenient sentence in the circumstances of this case.

34.  This court holds the view that it is a case where a sentence short of imprisonment can be considered and imposed.

35.  Having regard to the defendant’s character and previous conduct, circumstances of the offence and of the case, the contents of the report, it is expedient for the defendant’s reformation, for the prevention of crime and also in the interest of the society that the defendant should undergo a period of training in a Training Centre.

36.  This court now imposes a Training Centre order on the defendant.