HKSAR v. LAM SUNG YEE

DCCC 445/2021

[2022] HKDC 142

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 445 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant before me today is the 1^st defendant in this case. He, two weeks prior, pleaded guilty to a single charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap 210, where he was jointly charged with the 2^nd and 3^rd defendants. The defendant is aged 15. At the time of the robbery, he was only 14 years of age.

2.  In sentencing, I take into account the whole circumstances of the case including its nature and facts, personal background of the defendant and mitigation put forward on the defendant’s behalf by his Counsel.

Summary of facts

3.  This is a street robbery committed at around 3:30 am on 2 February 2021.  The defendants targeted a lone woman to rob.  According to the Summary of Facts and the CCTV footage and the defendant’s own admission in the video-recorded interview by the police subsequent to his arrest as summarized in the Summary of Facts, at about 11 pm on 1 February, the defendant’s friend, the 2^nd defendant, told the defendant that he was in need of money and invited the defendant to commit robbery.  Soon afterwards they met the 3^rd defendant, whom the defendant did not know before.  Three of them discussed and agreed that the 3^rd defendant would grab the target, the 2^nd defendant would attack the target and the defendant would grab the properties from the target.  At around 1:00 am on 2 February, they started to look for a target to rob.  At around 3:38 am, the defendants decided to rob Madam Cheung, aged 41, when they saw her walking on her own on the street.  After following her for a few minutes, the defendants approached her.  The 3^rd defendant asked her to surrender the rucksack that she was carrying while the 2^nd defendant waved a wooden stick of around 60 cm in length near her.  The defendant stood nearby.  Feeling scared, Madam Cheung handed over the rucksack to the 3^rd defendant.  The 3^rd defendant further demanded Madam Cheung to surrender her mobile phone which she did.

4.  After the robbery, the defendants fled.  At around 3:50 am the defendant and the 2^nd defendant boarded a taxi.

5.  The contents of the rucksack and the mobile phone are particularized in the charge.  Madam Cheung did not suffer any injury.

6.  The total value of the stolen properties was around HK$55,880, including cash of around HK$50,000.  The defendant got a share of HK$24,000. The defendant was arrested on 5 February.  By that time, he had spent all the money.

7.  Some of the stolen property was subsequently recovered including cash of HK$14,000 and Madam Cheung’s mobile phone from the 3^rd defendant’s residence and two ATM cards and two other cards from the street.

Criminal record

8.  The defendant, although only being 14 years of age at the time of the offence, was not of clear record.  He appeared in court on 3 occasions amassing 4 convictions including 3 for theft for which he had been put on probation twice.  Presently, he is serving a Detention Centre order for an offence of possessing articles with intend to destroy or damage which was committed on 28 January 2021, 5 days before the present offence.  Counsel told the court that he was expected to be released from Detention Centre by 2 March 2022 the latest, having commenced that sentence on 3 September 2021.

Background and Mitigation

9.  Because the defendant was only 14 years old at the time of the offence and only 15 at present, I acceded to the request of Counsel and adjourned the case to today to obtain a Training Centre report but refused the request of calling also for a Detention Centre Report.  I do not consider an order to detain the defendant in a Detention Centre appropriate bearing in mind the seriousness of the offence and the criminal records of the defendant. Given the circumstances of the defendant and the offence and having considered the regime and means of training in a Detention Centre and the fact that the defendant has been receiving training in the Detention Centre and will complete his maximum statutory detention period there soon, I consider the defendant requires longer disciplinary training with a reformist agenda and the Detention Centre is not the answer.

10.  The Training Centre Report sees the defendant as coming from a broken family.  His parents divorced in 2013 when he was in Primary Two.  His mother deserted the family and since then he lost contact with his mother.  In the same year, he was diagnosed with Attention Deficit Hyperactivity Disorder. He was mainly taken care of by his grandmother when his father was busily engaged in work as a minibus driver to support the family.  Without sufficient parental guidance and supervision, the defendant’s academic results deteriorated during his upper primaries.  He had been an underachiever at school and was unable to catch up schooling at the secondary level.  He ceased schooling in 2019.  He then involved himself with dubious peers and because of his bad association and unruliness, he ran into trouble with the law.  This included him trying different types of dangerous drugs.

11.  In his written mitigation, Counsel told the court that the defendant is truly remorseful.  Although he had previous convictions, he had never committed an offence as serious as this one.  Due to his young age, Counsel urged upon the court to impose a rehabilitative sentence on him. Today, Counsel asks the court adopt the recommendation of the Assessment Officer and sentence the defendant to a Training Centre.

Sentence

12.  Robbery is a serious offence.  The maximum sentence is one of life imprisonment.

13.  There are factors that I consider relevant, they being; it was a premeditated street robbery committed in the small hours where a form of weapon, a wooden stick, was displayed and the victim, a lone lady, was subjected to fear.  I do not find that that constitutes the use of a dangerous weapon as envisaged by the case of Mo Kwong Sang[1]. It is not a knife or other dangerous weapon.  There was little physical violence applied to the victim and no injuries resulted from the robbery.  It is, however, an aggravating factor that there are more than one robber in this case.  The value of the property robbed cannot be said to be minor.

14.  For a case like the present one, if not for the age of the defendant, imprisonment for a substantial term would have been appropriate (See Ting Chiu[2] regarding the sentencing of unarmed robberies). As Counsel pointed out, “[for] adult robbery offenders, the court would generally adopt a starting point of 4 to 5 years’ imprisonment.”

15.  I have been referred to the case of Wong Tsz Hin[3]. 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 order than the defendant and was involved in more than one robbery and used a weapon, a knife, and was sentenced to Training Centre.

16.  The defendant is confirmed mentally and physically fit for detention in a Training Centre.  From the information available and after a general assessment of the defendant’s behaviour and attitude whilst undergoing training, the Assessment Officer of the Correctional Services Department considered him suitable for detention in a Training Centre.

17.  Taking into account the very young age of the defendant and having carefully considered the defendant’s character and conduct and the circumstances of the offence including that he acted under the influence of the 2^nd defendant who was a couple of years older than him, I am satisfied that it will be in the interests of the community and that of the defendant that he be detained to receive rehabilitative training rather than to be imprisoned.  Training in a Training Centre will be conductive to the reformation of the defendant and for prevention of crime, having regard to his character and previous conduct and to the circumstances of the offence.  In the Training Centre, the defendant will receive educational and vocational training as well as character development training. 

18.  In making the decision, I have considered the possible length of training in a Training Centre, despite it is not a predominant sentencing consideration, and have concluded that such a possible length of deprivation of freedom is not out of proportion in the circumstances of the case.

19.  Based on the matters aforesaid, I sentence the defendant to detention in a Training Centre.