HKSAR v. YU KA FAI AND ANOTHER

DCCC1107/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1107 OF 2010

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Reasons for Sentence

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The Charges

1.  The 1st Defendant and the 2nd Defendant are brothers. Both were convicted after trial of one charge of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200.

2.  The 2nd Defendant, the elder brother, in addition, was convicted of one charge of “claiming to be a member of a triad society”, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

The Evidence Adduced

3.  I have detailed the events relating to these charges when I gave my verdict. In the circumstances, I am not going to repeat all of those here.

4.  Briefly, on 6 May 2010, when PW1, a boy aged around 14 at the time, was returning home from school, he met the 1st Defendant and the 2nd Defendant in a park. PW1 came to know the 1st Defendant when he studied Form 1 and he had also met the 2nd Defendant on 3 previous occasions.

5.  While they were in the park, both the 1st Defendant and the 2nd Defendant walked up to PW1. The 1st Defendant then took out a knife which, according to PW1’s description, should be a flick knife. The 1st Defendant pointed it at the central part of PW1’s abdomen, and asked PW1 to give him HK$50. PW1 told the 1st Defendant that he would not give him the money. The 1st Defendant said to PW1 that if he did not, he would die. Then, the 2nd Defendant walked up to PW1 and bumped PW1 with his chest. The 2nd Defendant said to PW1 that he was of Shui Fong triad society. The 2nd Defendant also asked PW1 whom he followed. Then, the 2nd Defendant reached his hand into PW1’s trousers pocket, trying to take PW1’s wallet. These formed the subject matters of the two charges mentioned above.

6.  Later, PW1 managed to escape from the Defendants. He then went to the lobby of Oi Yee House, which was a building nearby. The 1st Defendant gave chase. When PW1 was inside the lobby of Oi Yee House, he tried to seek assistance from the security guard. However, the guard was talking on the phone at that time and did not seem to have paid attention to PW1. At that juncture, the 1st Defendant left. These were captured by the CCTV cameras installed at Oi Yee House, the relevant footages of which were produced at trial.

7.  Subsequently, PW1 went to an elderly home next to Oi Yee House. The 1st Defendant then re-appeared but was told off by the staff of the elderly home. With the money given by the staff, PW1 went home by taxi.

8.  The following day when PW1 returned to school, he related the matter to the school’s discipline master. A report was then made to the police which led to the arrest of the 1st Defendant and the 2nd Defendant.

The Defendants’ Background

9.  The 1st Defendant is now aged 15½ and the 2nd Defendant is aged 17½. At the time of the offences, the 1st Defendant was aged 14½ while the 2nd Defendant was aged 16 years and 8 months. In view of the Defendants’ young age, I adjourned sentence to today in order to obtain a background report and a Training Centre Report on each of them.

10.  It was disclosed in the background report that the 1st Defendant has been dealt with under the Superintendent Discretionary Scheme twice, one in respect of criminal damage/AOABH in 2006 and another in respect of shoplifting in 2009. The 2nd Defendant has a clear record.

11.  The Defendants’ father is a delivery worker but he has been on sick leave since December 2010 owing to an injury said to have been sustained at work. It was stated in the background report that, “His manager, David, was still paying 80% wage to him monthly despite nil symptom of his mobility problem and nil medical prescription.”

12.  Owing to the partial payments received by the Defendants’ father, it was said that the family is only able to get a limited amount of assistance from the Social Welfare Department. The Probation Officer noted that for April 2011, the amount of assistance given to the family was just a sum of HK$84.90. Worse still, the Defendants’ mother complained to the case worker that the father had an extra-marital affair and he provided very little to support the family.

13.  Other than the financial and marital problems, it was also disclosed in the report that there was an incident of domestic violence in which the Defendants’ mother was assaulted by their father. The 2nd Defendant was asked by the father to cover it up for him. The 1st Defendant, however, told the police what happened.

14.  Given the Defendants’ family circumstances, it is not surprising that when the 1st Defendant’s poor school attendance was brought to the attention of his parents with warning letters issued by the Secretary of Education, an indifferent attitude was adopted. Eventually, the 1st Defendant left school in January 2010 and attended the Youth Employment Assistance Programme organized by an NGO in October last year. However, owing to his small build and young age, the 1st Defendant has not managed to get any open employment.

15.  Insofar as the 2nd Defendant is concerned, he was found to be functioning within the range of Mild Grade Mental Handicap in 2000 and he was then arranged to study in a special school in 2004. However, his school attendance was also poor. He had missed 71.5 and 90.5 school days for the two semesters of the year 2007/2008. Finally, the 2nd Defendant quitted school in the summer of 2008. Again, the parents adopted an indifferent attitude towards the 2nd Defendant’s quitting school.

16.  After ceasing education, both Defendants then started hanging around in the streets and their parents did not seem to be able to provide any useful assistance or guidance to them.

17.  During the interviews the Defendants had with the Probation Officer, both denied having committed any offence. They blamed PW1 for having fabricated the allegations against them in order to take revenge on them.

The Training Centre Reports

18.  In the concluding paragraph of the Training Centre Report prepared in respect of the 1st Defendant, it was stated that,

”… His parents were lenient in child discipline and failed to render effective supervision during defendant’s upbringing. … Lacking interest in school, defendant quitted school without completing his repeated Form One in January 2010. Afterwards, defendant became idle and liked loitering in his home vicinity with his brother Yu Ka-leong (co-defendant of the present offence). … In view of his weak self-control ability and weak law-abiding concept, a longer period of disciplinary training coupled with statutory supervision was considered beneficial to his reformation.”

19.  A similar conclusion was found in the report prepared in respect of the 2nd Defendant. The Officer, however, further commented that,

“… His association with his brother Yu Ka-fai (D1) subsequently landed him into the current offence.”

20.  The Officer’s observation is supported by Mr. Szeto who acted for the 2nd Defendant. Mr. Szeto informed the court that during his encounters with the 2nd Defendant, he found him very much emotionally attached to his parents and the 1st Defendant. Mr. Szeto also laid emphasis on the fact that the 2nd Defendant was regarded by the social worker in the special school as having a fair school performance and could comply with school regulations most of the time. It was submitted that, as the 2nd Defendant is suffering from a mild grade mental handicap and he might not know what is best for him, his absence from school was, to a large extent, attributable to the lack of parental supervision as his parents should not have allowed him to remain idle at home.

21.  In view of the 2nd Defendant’s background and all the relevant circumstances, Mr. Szeto urged the court to adopt the recommendation in the Training Centre Report as reformation of the 2nd Defendant is not only beneficial to him, but also to the community.

Sentencing Considerations

22.  As the 1st Defendant is still under the age of 16, he is a “young person” as defined in the Juvenile Offenders Ordinance, Cap. 226. Section 11(2) of that Ordinance stipulates that “No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way.”

23.  The 2nd Defendant is under the age of 21. The offence of “robbery” is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221, and section 109A is not applicable. However, the offence of “attempted robbery” in respect of which the 2nd Defendant was convicted is not stipulated in that Schedule.

24.  In any event, a sentencing court would consider how best it is to deal with young defendants, given the nature and circumstances of the offence, the interest of the community, and the offenders’ background, etc. I am also aware that in Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal examined the circumstances under which a training centre order is to be imposed and what the relevant considerations are.

25.  No doubt, robbery is a serious offence and an immediate custodial sentence is generally called for. If not because of the age and the background of these Defendants, I would have no hesitation in imposing a term of imprisonment.

26.  In the present case, the attempted robbery committed by the Defendants was not of a sophisticated nature. It was committed in board day light and the victim was the 1st Defendant’s schoolmate. Such would no doubt render the identification of the 1st Defendant and the 2nd Defendant relatively easy. I also note that although a weapon was produced at the time of the robbery, such was not of the extreme lethal type. It was a flick knife. It should also be noted that although there were the two of them at the time, not much force, other than the bumping by the 2nd Defendant, was actually exerted on PW1 by them. In fact, PW1 managed to escape and he sustained no injury. At the same time, no property was actually taken by the Defendants. All things considered, I would regard this case to fall within the lower range of attempted robbery offences.

27.  Tuning to the Defendants’ background, on the information available, I have no doubt that both the 1st Defendant and the 2nd Defendant did not receive effective parental supervision during their up-bringing. As a result, they were allowed to hang around in the streets despite their age and despite the 2nd Defendant’s mild grade mental handicap. Imposing a term of imprisonment may serve the purpose of punishing them but it may not be the best way to deal with them in view of their lack of supervision in the past and in view of their age. In saying this, I am aware that the factor of young age might pale into insignificance depending on the magnitude or prevalence of the offence. However, as I have mentioned above, this is certainly not a case in the worst category. In my view, both Defendants require training and discipline to bring them back onto the right track and to help them become useful members of the community. If they were to be left on their own, there would be a high likelihood that they would go down a track which has no return.

28.  Therefore, in the interest of the community and for crime prevention, I agree with the reporting officers that a period of disciplinary training coupled with statutory supervision is beneficial to them. Such training and supervision would not be available if a term of imprisonment were to be imposed.

The Sentences Imposed

29.  After careful consideration, I take the view that a training centre order is the most appropriate method to deal with both the 1st Defendant and the 2nd Defendant. Therefore, for the attempted robbery offence, I sentence both Defendants to Training Centre, and in respect of the Claiming MOTS charge, I also sentence the 2nd Defendant to Training Centre. The Training Centre Order in respect of the 2nd Defendant is of course to run concurrently.