HKSAR v. HUI SIN HIN SAMUEL

DCCC 821/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 821 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 6 November 2015, the defendant pleaded guilty to one charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. 

Facts of the case

2.  In the evening of 24 July 2015, the defendant followed Madam Zishan, the victim in this case, into an elevator in Chau Kwai House, Kwai Chung Estate, Kwai Chung.  They got out of the elevator on the 12^th floor and were walking at the lift lobby when the defendant pointed a cutter at Madam Zishan’s neck and declared robbery.  He grabbed one of the two straps of Madam Zishan’s handbag and cut it with the cutter.  Madam Zishan put up a struggle, breaking the other strap of the handbag, and rushed home, while the defendant fled via the staircase without taking her handbag away.  About an hour later, the defendant, claiming to be the victim of a robbery with injuries in the left forearm, sought medical assistance from an ambulance attendant who happened to be on duty at No 87-89 Wo Tong Tsui Street, Kwai Chung; a report was made to the police.  The investigating officer found the defendant’s appearance matching that of the robber who had attempted to rob Madam Zishan at Chau Kwai House; he cautioned him.  Under caution, the defendant admitted having committed the offence, in the course of which he injured himself with his own cutter; he explained he was scared when the victim shouted, so he had not taken anything away.  Later, the defendant led the police to a flowerbed where the cutter he had earlier discarded there was seized.

Training centre suitability report

3.  The defendant is a fresh offender.  When he committed the present offence, he was just about to turn 18.  Despite the obvious seriousness of the offence and despite the defendant’s wish to be sent to prison immediately, the court calls for a Training Centre Suitability Report. 

4.  In summary, contents of the Report are as follows.  The defendant was born in August 1997; his mother, who broke up with the defendant’s father right before the defendant’s birth, was then 23 years old.   The defendant adopted his mother’s surname.  His mother has for a long time been suffering from a depressive disorder which has necessitated psychiatric treatment from time to time.  She has been unable to exercise effective parental control over the defendant.   The defendant himself has always been an under-achiever at school, not passing one subject throughout his primary studies.  He began socializing with a dubious gang in mid-2010, and has since then been abusing ketamine and ice.  He finished his Form Three studies in July 2012.  In November 2012, he was placed under a 12-month Care or Protection Order and was sent to a special school to enhance his social development.  There he repeated Form Two and Form Three, which he completed in July 2014; his behavioural problems worsened in the meantime, the special school having failed to shield him from delinquent influence and youth gang subculture.  Not interested in further studies, he started to work intermittently as a temporary actor and a cargo attendant.  In October 2014, he attended a course in Chinese culinary; he dropped out after two months.  He has been unemployed for some two months prior to the commission of the attempted robbery.  

5.  Rehabilitation Assessment Officer Mr Liu Wai Pan opines that the defendant has all along been deprived of sufficient and effective parental care and supervision, and this has led to the defendant becoming wayward.  The defendant would require, in Mr Liu’s view, a longer period of time to eradicate his delinquent beliefs and subculture values.  The defendant has been frank about his culpability with respect to the attempted robbery and has behaved himself – not breaching any disciplinary rules – during his pre-sentence remand for assessment on his suitability for admission to a Training Centre.  Mr Liu considers him suitable for detention in a Training Centre.

Mitigation

6.  Mr David Hui appearing for the defendant makes a realistic submission that the only major mitigation in the defendant’s favour is his plea of guilty.  In so serious a crime as attempted armed robbery, previous good character and personal background do not normally constitute viable mitigation.  Mr Hui stresses, however, that the defendant was only 17 years old at the time of the offence, he has co-operated with the police in their investigation, and he has shown full remorse by pleading guilty to the charge at the first available opportunity, saving court’s time.  Having reconsidered his position at length, the defendant has, submits Mr Hui, changed his mind: instead of asking to be sent to prison, the defendant would ask the court to consider imposing a Training Centre Order on him so that he can learn to be a useful member of his family and of the community.

Reasons for sentence

7.  There is no suggestion before the court that attempted armed robbery should be sentenced any differently from the completed offence.  With respect to the sentencing principles to be applied in cases of armed robbery, the leading authority remains Mo Kwong-sang v The Queen[1].  In that case, the Court of Appeal said:-

“ As this court has said on a number of other occasions, little account can be given to the previously clear record of anyone who takes part in an “armed robbery”.

We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.

If such a robbery also involved an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.”[2]

8.  The list of aggravating factors (non-exhaustive, as always) includes multiplicity of offences, involvement of multiple offenders, and ill-treatment of victims.[3]

9.  The defendant’s young age is specifically relied on in his plea in mitigation.  In this regard, the biological age of an offender would normally provide a fairly accurate indication of the degree of his maturity.  However, in the case of young offenders, there can be a lot more factors inplay.  The defendant in this case has been brought up in a broken family; due to her own medical conditions, his mother has been unable to exercise effective parental control on him; he has been deprived of paternal guidance during his formative years; and the school specifically arranged to assist him to develop a sense of social responsibility has failed in its task. Put together, these circumstances suggest that the court should not attach excessive weight to the defendant’s biological age in assessing his need for rehabilitation.

10.  When sentencing a young offender for armed robbery, the case of HKSAR v Wong Tsz Hin[4] is particularly apposite and instructive.  In that case, a young offender of 16, a person of previous good character, represented himself to be a girl and made the acquaintance of two younger boys of 14 through online games.  He enticed them to the public toilets of remote villages, threatened them with a knife, and robbed them of their mobile phones and cash.  He pleaded guilty to two charges of robbery and was sentenced to four years and two months’ imprisonment.  On his appeal, the Court of Appeal agreed that the robberies were well-planned, the victims having been tricked into presenting themselves at a remote place to be robbed; and a knife had been displayed to the victims in both incidents.  However, the Court of Appeal considered that the case “was not a very bad case of the type”: the defendant had acted alone; neither of the victims was injured; and only a small amount of cash and mobile phones had been stolen.  In substituting the prison term with a Training Centre Order, the Court of Appeal said: “In view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.”[5]

11.  In the instant case, the defendant has acted alone, the offence does not exhibit a marked degree of planning or sophistication, no guile or craftiness has been used in its commission, there is no issue of multiplicity of offences, and the victim has received no injuries and has suffered no loss.  While the defendant has used some violence, it has been primarily targeted towards dispossessing the victim of her handbag rather than to cause her any harm or injuries.  There is therefore some force in Mr Hui’s submission that the defendant is not a person of a bad nature: he has had ample opportunity to inflict harm and injuries on the victim when she put up a struggle, but he has desisted from doing so.

12.  A Training Centre Order is, needless to say, conducive to the defendant’s rehabilitation.  It is never a soft option: the maximum period of detention at a Training Centre is three years, and upon release, he must submit to supervision for another three years.  Such an order would, in all the circumstances of this case, sufficiently address the sentencing criteria of punishment, retribution, and deterrence.  In the court’s view, the appropriate sentence is a Training Centre Order.

Conclusion

13.  For the offence of which the defendant stands convicted, he is sentenced to detention at a Training Centre.