HKSAR v. PUN TSZ KIN, PETER AND OTHERS

DCCC 62/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 62 OF 2010

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Reasons for Sentence

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Charges and facts

1.  D1 – D3 plead guilty to 2 charges of robbery. On 11:00 p.m. on 30 November 2009, they robbed a victim of one mobile phone, one I-Pod and cash of HK$220 in a pedestrian subway near Pok Oi Hospital, Castle Peak Road, Yuen Long, N.T. They had used a jacket to cover the victim’s head when they assaulted him with fists and kicks (Charge 1).

2.  At 11:40 p.m. on 1 December 2009, the victim reached a store near No. 727 of Tai Kei Leng, Tai Tong Road, Yuen Long, N.T.. They pushed the victim into an alley and assaulted him with fists. They robbed him of one Octopus card, one wallet, cash of HK$190, cash of MOP 110 Macao Pataca, one Hong Kong Identity Card, 2 bank cards, one Aeon J card, 20 name cards, 7 bank deposit notes, 4 stamps and 2 pieces of paper (Charge 2).

3.  On the following day near the scene, they were arrested by the police. Cash of HK$190, MOP110 Macao Pataca and one bank card in the name of the second victim were found on D1. Cash of HK$98.30 was found on D2.

4.  A staff member of a mobile phone shop in Hong King Street had been approached by four males, who offered to sell one mobile phone. The mobile phone belonged to the first victim. The shop gave $700 to them to purchase it. It was then resold to a customer.

5.  Under caution, they admitted taking part in the two robberies.

6.  In the identification parade conducted on 3 December 2009, the first victim identified D1. The second victim identified D1 and D3.

Mitigation put forward

7.  D1 is 16 years of age. He received education up to F.3. He has no work experience. According to the Training Centre Report, he had often engaged in late-night merriments with undesirable peers. He had 2 convictions for theft, for which he received 12 months’ probation. The probation order was breached shortly afterwards.

8.  D2 is 15 years of age. He received education up to F.2. He has no work experience. According to the Training Centre Report, he had often engaged in fun-seeking activities with undesirable peers. He had 1 conviction for theft, which took place on 3 October 2009, which was prior to the present robberies. He received 21 months’ probation on 9 February 2010. However, the present robberies were committed whilst on bail for the theft. There is no dispute that it is an aggravating factor. His own mitigation letter put forward his deep remorse. The mitigation letter from the disciplinary master of his school reflected that he was seen to be of good character. The mitigation letter from his father pledged full responsibility and support for his reform.

9.  D3 is 15 years of age. He received education up to F.2. He has a clear record. He has no work experience. According to the Training Centre Report, he had often engaged in late-night merriments with undesirable peers. At times, he also toyed with ketamine. He wants to be sentenced to Tuen Mun Children and Juvenile Home (TMCJH), where he had been remanded since 4 December 2009. He does not want to mingle with the undesirable inmates in the Training Centre. Mitigation letters from himself, his school and social service bodies reflected that at times, he could lead a well-meaning life. He has the potential to behave well and responsibly.

Sentencing principles

Prison or the training centre

10.  Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

11.  The offence of robbery is an excepted offence by Schedule 3. The Court may consider imprisonment on a par with other penalties.

No sentencing tariffs for unarmed robbery

12.  There are no sentencing tariffs for unarmed robberies. The customary sentence, where some, albeit minimal, violence is used, is imprisonment, though.

Sentencing the defendants

13.  Each was a serious robbery as a lone victim was being attacked in a quiet location. But for their young age, I would have opted for imprisonment not less than 4 years in each case. I understand that they are each recommended suitable for the Training Centre. D1 and D2 accept the recommendation whereas D3 does not. I do think that nowhere else than the Training Centre can offer a comprehensive reform in the case of D3. A period to be spent in the TMCJH is too soft an option, which does not carry the after-care supervision period which is essential for D3, who had committed 2 robberies. I am satisfied that it is in the interest of the community and that having regard to the character of each defendant and his previous conduct, and to the circumstances of the offences, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in the training centre. This order shall be concurrent for both charges.

14.  I order the probation order of 21 months imposed in TM/4399/09 for D2 be discharged.