HKSAR v. LUI CHUN LONG AND OTHERS

DCCC 76/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 76 OF 2016

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Reasons for Sentence

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1.  The three defendants jointly committed a robbery on a taxi driver in the early hours of the morning of 4 September 2015.

2.  The 1st and 2nd defendants are young men aged 20 and 19 respectively.  The 3rd defendant is now aged 15; at the time of the robbery, he was only 14 years of age.

3.  They have all pleaded guilty to one joint charge of robbery and accepted the facts, and I have convicted them.

4.  The victim is aged 66.  He was a night-shift taxi driver.  At about 4 am, the defendants boarded his taxi, and at the end of their journey the defendants said they did not have the payment of the fare and asked him to wait.  A few minutes later, one of the defendants used a dismantled coat hanger to restrain the victim’s neck from behind.  There was a struggle, and the coat hanger was also wrapped around the victim’s hands.

5.  During the struggle, the 1st and 3rd defendants snatched the victim’s bag and mobile phone.  The shoulder bag contained some red packets containing about $400 cash, and there was a mobile phone valued at about $5,000.

6.  The defendants were arrested shortly afterwards in what is called a sweeping exercise.  The red packets, which were empty, were found from the front pocket of the 1st defendant’s trousers.  The mobile phone was found from the front pocket of the 2nd defendant’s trousers.  Two $50 banknotes, 15 $20 banknotes, and a mobile phone battery were found from the front pocket of the 3rd defendant’s trousers.

7.  The defendants made admissions under caution at the scene and also later in which they admitted their parts in the robbery, their roles in the robbery.

8.  The 1st defendant said that he had no money, and asked the 2nd and 3rd defendants to help him rob.  The 2nd defendant admitted to having snatched the mobile phone.  The 3rd defendant admitted taking the shoulder bag.

9.  All three defendants are of clear record.  It is a serious offence, but nevertheless I obtained background reports upon them, because this is their first venture into criminality.  So for all of them, participation in an offence of this nature is out of character.

10.  As far as the 1st defendant is concerned, he is aged 20.  Apparently he was brought up in a broken family and is said not to have received proper and adequate parental guidance.  He was not serious about studies and did not complete secondary education.  The offence is attributed to his mingling with dubious friends.  He wanted fast money, and appeared to owe some money, and took this method to try and get some money.

11.  The 2nd defendant has a slightly more extensive report.  He has had education problems, hyperactivity disorder and dyslexia in the past.  This clearly leads to learning difficulties and underperformance academically.  He had been to a secondary boarding school in Guangdong, and worked in kitchen work as an assistant.  He says the offence was carried out spontaneously after a brief discussion between them.  They did not give much thought to the legal consequences.  It is said this defendant is immature, he is impulsive, and has a poor law-abiding concept.

12.  As far as the 3rd defendant is concerned, he is in a different category, being of a very young age at this point.  The background report sees him as coming from a broken family:  a father with drinking problems and a mother who deserted the family when he was young.  He has been looked after by grandparents, and has below average academic performance, and unfortunately the grandfather and his father had passed away in 2009 and 2012.  It would appear that after the death of the father, this defendant turned wayward, and he mingled again with bad company.  Presently, before his incarceration, he was at a residential school placement, but that apparently is not satisfactory.  He is said to be weak in self-control and engages in late-night activities.

13.  Because of his age, I obtained a report from the Correctional Services Department to see if he was suitable for any of their rehabilitative programmes for very young people.  In this case, they were to assess his suitability for either detention centre or training centre.

14.  Their conclusions are similar to the conclusions reached by the probation officer in the background report.  Again, they see the defendant as being brought up in a broken family, father with a drinking problem, and placed under the supervision of grandparents; an underachiever at primary level, unable to catch up with schooling at the secondary level; then involving himself with dubious peers; and, because of his bad association and unruliness, running into trouble, in this case.  They see his problems as being weak self-control and weak law‑abiding concept.  I do not think anyone could dispute those conclusions.

15.  They see a period of disciplinary training coupled with statutory supervision as beneficial to his reformation.  The defendant is physically fit and mentally fit for detention centre or training centre. They have made a general assessment of him as to which he is more suitable for, and it is the view of the Correctional Services Department that he is more suitable for detention in a detention centre.  In reaching that conclusion, they are clearly considering their capacity to rehabilitate him back into society.

16.  As far as sentencing is concerned, taxi robberies constitute what appears to be a subset of general robbery.  This is because of taxi drivers’ general vulnerability.  They cannot refuse hire; they often and probably always carry ready cash; and they are in a vulnerable position.  They often ply their trade at unsocial hours when there are few people around.  They are easy victims.  I think you could say they are soft targets for robbers.

17.  Because of this, the courts have, in terms of sentencing, considered them in a somewhat separate category, and the courts have said that the proper sentence for a taxi robbery with no particular aggravating factors is between 5 to 6 years’ imprisonment.  That is the case of R v Tran Van Anh [1993] 3 HKCR 122.

18.  In this case, there has been the use of a form of weapon.  It would appear that it was an altered coat hanger, which was used to restrain the victim.  I do not find that that constitutes the use of a dangerous weapon as envisaged by the case of Mo Kwong Sang.  It is not a knife or other dangerous weapon.  It is, however, an aggravating factor of a taxi robbery that a form of weapon was used to restrain the victim, and in this case, was used by a group of young men in combination in the small hours of the morning.

19.  In this case, the defendants have acted together.  They used more than minimal force to restrain the victim, and committed the offence against the taxi driver at a time when they knew he would be vulnerable.

20.  I must determine a starting point for sentence in respect of an offence such as this.  A starting point for sentence involves a plea of guilty by a person with an otherwise clear record.  That the starting point for sentence involves the proper sentence for conviction after trial of a person with a clear record is correct.

21.  In this case, the defendants are of clear record, and the offence, from what I can see, is somewhat out of character for all of them, and they are also all very young; even the 1st and 2nd defendants are still young men, with a lot of life ahead of them.

22.  I consider taking all these factors into account, the appropriate starting point for sentence in this case, the general starting point for sentence for the defendants should be one of 5 years and 3 months’ imprisonment, which is 63 months’ imprisonment.

23.  The 1st and 2nd defendants are adults.  They have pleaded guilty.  They are entitled to a full one-third discount for that. That means that their sentences of imprisonment will each be 42 months’ imprisonment.

24.  The factors relevant to the 1st and 2nd defendants are not necessarily relevant to the sentence for the 3rd defendant. The 3rd defendant falls into a different category because of his age.  He was 14 years and 9 months old at the time of the offence.  I have been referred to the case of HKSAR v Wong Tsz Hin Cr Appeal Case 38/2012.  This is authority for the proposition that even in serious cases such as robbery, a rehabilitative sentence such as a detention centre or training centre order can be appropriate for a young offender, and the offender in Wong Tsz Hin was in fact older than this defendant and was involved in more than one robbery and used a weapon, a knife, and was sent to training centre, eventually.

25.  In this case, the defendant is very young.  He is on the verge of being in the category described as “extreme youth”, which would permit him to be sentenced with a separate approach to sentence in any event.

26.  Taking into consideration those facts, plus the reports I have read, I consider that in view of the young age, clear record, and the benefit to the community, the defendant should be subject to a rehabilitative sentence that would effect his rehabilitation more completely than a long-term sentence of imprisonment.

27.  Now I must consider which of the various options are open, but in making that consideration, I must bear in mind the views of the Correctional Services Department.  They have assessed the defendant.  They have assessed that a detention centre order would better secure his rehabilitation than any other order they could recommend.

28.  I do not see any reason why I should not follow this recommendation.  Therefore, I will order that the 3rd defendant be sentenced to a detention centre order.