HKSAR v. SINGH LADDI

DCCC 762/2021

[2022] HKDC 120

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 762 OF 2021

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to the charge of Attempted Robbery. He is charged that on 16 March 2021, near the parking space No. 045 and No. 070, C1 Floor, Car Park B, Tat Kai House, Po Tat Estate, Sau Mau Ping, Kowloon in Hong Kong, together with D2 and D3, attempted to rob Ho Wai.

2.  He admitted the summary of facts, the gists are as follows.

In around October 2020, Mr Ho Wai (PW1)  posted an advertisement on an online platform known as “Carousell” to sell his wife’s private car registration no VS6491 for a price of HK$115,000. On 16 March 2021, he received a message from an account user name “johnny.xox” to show his interest in buying the car. Subsequently a meeting was set up to meet at the carpark in question to test the car. About an hour later, the parties met. D3 came with D1 and D2. D3 introduced himself as the potential buyer, D1 and D2 were his friends. After several test rides, D3 agreed to purchase the car at HK$113,000 and to pay HK$15,000 as deposit. The parties then executed 2 copies of vehicle transfer agreement and each kept a copy. PW3 put down the name “Fong Hok-yam (方學鑫)” and HKID card no. Z069789(6)  and a mobile phone number 62124847 under the Buyer’s column on both copies. D3 then claimed he did not have enough cash and asked PW1 to drive D1 and D2 to an ATM. On the way, D2 claimed that he forgot to get the ATM card from D3 and so they returned to the carpark. All 3 defendants had a chat, after that, D3 asked PW1 to take D1 and D2 to the ATM again. PW1 agreed. When they returned to the carpark, D3 was nowhere to be seen. When PW1 was returning to his car, D1 suddenly held both of his hands tightly from behind and D2 was standing in front of PW1 and asked him to surrender his car key. D2 also tried to search PW1’s body for the car key. PW1 struggled and kicked D2, then he was punched by D1 at his waist twice. PW1 leaned back on D1, who then released PW1’s hands, and as a result, PW1 fell onto the ground and sustained an abrasion on his right palm. D2 urged D1 to leave and told PW1 that they were just playing. D1 and D2 then fled. PW1 reported the case. The incident was captured by the CCTV cameras at the carpark. D1 was arrested on 22 March 2021. Under caution, he admitted that D3 called him on the material morning and asked him to help robbing someone of a car for a reward of HK$20,000 if successful. All 3 defendants were positively identified by PW1 in the identification parade.

3.  D1 is duly convicted.

Record

4.  D1 has a clear record.

Personal background

5.  D1 is now 20 years old.  He was born in Hong Kong.  He is single, living with his parents and a younger sister.  He studied up to Form 4.  Before arrest, he was working full time as a chef in a restaurant earning HK$16,000 per month.

Background of the offence

6.  On the day of the offence, he received a call from D3 in the morning who offered him a reward of HK$10,000 - $20,000 if he helped to rob a vehicle.  He duly met up with D2 and D3 at the material carpark.  It was D3 who masterminded the robbery.  D3 instructed them to leave the carpark with the victim on the pretext to withdraw cash from ATM machine to pay for the deposit and D1 was to contain the victim by force.  D1 committed the offence out of stupidity and greed.  He did not receive the reward or money from D3 for his participation.

Mitigation

7.  D1 was arrested several days after the offence.  He made a full and frank confession to the police with details of the plot and the respective roles played by the 3 of them.  He also assisted the police in apprehending D3 by providing D3’s telephone number.  He is remorseful and pleaded guilty to the charge at the earliest available opportunity.

8.  There was no weapons used in the course of the offence.  The force applied by D1 was to contain the victim mainly by holding the victim’s hands tightly from behind, and punching the victim’s waist twice, and grabbing hold of the victim’s hands again.  When the victim leaned back on D1 as a result of D1’s punching, D1 released his hands causing him to fall onto the ground.  D1 and D2 then fled without persisting to rob the car key.  It was fortunate that the victim only sustained abrasions on his right palm.

9.  His counsel Ms Cheung provided a number of cases for my consideration.  She submitted that in view of D1’s age, the court may wish to call for reports on him before sentence.  She also submitted that D1 has been detained in custody for 10 months since March 2021.  In the event that detention in a Training Centre is recommended for D1, all the time he has spent in custody cannot be counted.  The training period for detention in a Training Centre is from 18 months to 3 years.  She urged the court to sentence D1 to prison.  She revealed D3 who pleaded guilty earlier was sentenced to 2 years’ imprisonment (HKSAR v Lu Chun Lam (陸俊霖), DCCC 762/2021 refers).  The sentencing court adopted 3 years’ imprisonment as starting point, for his timely plea, reduced to 2 years.  Ms Cheung submitted that the sentence on D3 has a strong bearing on D1’s sentence.  D3 was the mastermind, not only did he recruit D1 to commit the offence, he decided what role D1 (as well as D2)  to play in the robbery, and used a faked name and identity card no. to hide his true identity.  Obviously, D3’s culpability is more serious than D1.  D1 simply followed D3’s instructions.  When the robbery seemed to be futile, D1 did not apply greater force on the victim in furtherance of the offence but fled instead.  Because D1 is less culpable than D3, Ms Cheung urged the court to adopt a starting point slightly under 3 years when sentence D1.

10.  After hearing counsel’s mitigation, in view of D1’s age, the court should take into consideration of Section 109A of the Criminal Procedure Ordinance, Cap 221, I decided to adjourn sentence and called for Detention Centre, Training Centre and Rehabilitation Centre Suitability reports so that all sentencing options could be considered in one go.  

CSD reports

11.  D1 is found medically unsuitable for detention in a Detention Centre because of overweight but is mentally and physically fit for detention in a Rehabilitation Centre or a Training Centre.  He is recommended for detention in a Rehabilitation Centre but no specific reasons were stated in the report in support of this recommendation.

Further mitigation

12.  Ms Cheung informed me that D1’s parents, sister and close relatives are here this morning to show their care and support to D1.  Of all the sentencing options the court has, she urges me not to sentence D1 to a Training Centre mainly because of the length of training for D1 has already been remanded in custody for over 10 months by now, and this period of time cannot be counted towards the length of his detention in the Training Centre.  She refers to the authority HKSAR v Leung Lai Kwan, CACC 597/1999.  She submits sentencing D1 to a Rehabilitation Centre is a suitable alternative to imprisonment.  She cites the relevant passages [paragraphs 50-39, 50-40, and 50-41] in Sentencing in Hong Kong, 9^th edition in support.

Deliberation of sentence

13.  Robbery is a serious offence. Section 10 of the Theft Ordinance, Cap 210 provided that “Any person who commits robbery, or an assault with intent to rob, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for life.”  The maximum sentence the District Court can impose is 7 years’ imprisonment.  The customary sentence is 5 years’ imprisonment depends on the facts of each case and a higher starting point should be considered if there were aggravating factors.  In a case where a weapon was used or displayed, the tariff is 5 years’ imprisonment (Mo Kwong-sang v R [1981] HKLR 610).  In the case of The Queen v Yau Kwok -tung, CACC 17/1987, the Court of Appeal held although a sentence of 4 years was at the top end of the tariff for robberies where weapons were not displayed, taking into account of the fact that the offence took place at night and that the victims were frightened, the sentence was not so manifestly excessive that it would be proper for the court to intervene.

14.  The present case is a case of joint enterprise.  The 3 defendants acted in concert with the intent to steal the victim’s car by robbing the car key from the victim, these are aggravating factors.  Force was in fact used on the victim and was premeditated.  According to the confession made by D1 under caution, D3 instructed him to grab hold of the victim and D2 was instructed to rob the victim of the car key.  Having seen D1 in court, I can understand why he was recruited and assigned the role to contain the victim.  He is a big lad with stout built. He did not just grabbed hold of the victim’s both hands from behind, he punched the victim twice at the waist when the victim resisted.  Fortunately, the victim did not sustain more serious injuries than abrasions on his palm resulted from the fall.  Although this case does not fall into the worst of its kind for no weapons were used or displayed in committing the offence, and the victim did not sustain more serious injuries than abrasions on his palm resulted from the fall, it is a bad case of robbery.

15.  Regarding D1’s background, like most of the juvenile delinquents before the court, he showed no interest in his studies and was an underachiever in school especially so after promoted to secondary level when the school curriculum became harder.  He was required to repeat Form 4 and dropped out of school in July 2018.  He started working as a factory worker but not for long.  He idled at home until mid-2020 he started working as a chef until he was arrested for this case.  He spent his leisure time fun seeking, mingled with baneful peers, some of them have triad background.  Consequently, he became a member of a triad society and involved in illicit drug dealings in order to earn easy money.  Allegedly, he ceased his involvement in drug dealings in early 2021 but did not cut off the linkage with his delinquent peers.  He came to know D3 in January 2021 through his co-worker, eventually landed himself into trouble with the law by committing the present offence.  D3 asked him to rob the victim’s vehicle in return for a reward of HK$20,000.  He claimed he did so purely out of greed.  His parents were unaware of his outside activities or his peership.  His mother was shocked to know her son’s predicament as she thought he was well-behaved at home.

16.  D1 was arrested on 24 March 2021 and has been remanded in custody since.  During his remand in Pik Uk Correctional Institution (“PUCI”), he broke the rules by assaulting other remanded persons and was put on adjudication.  Following his conviction of his present offence, he was further remanded at PUCI for suitability reports.  During interview, he was polite and cooperative in disclosing his background and outside merriments.  He asserted that he had reflected over his mistakes in the wake of his current remand in jail custody, and he would resume his normal employment after the completion of his current case.  The intake officer opined that he showed some sense of remorse for his misbehaviour.

17.  D1 was 19 at the time he committed this offence.  His family members were present in court to show their concern for him and support.  His mother assured the assessment officer of PUCI that the family will render continuous support towards his rehabilitation and hoped that he would mend his ways in future.  D1’s employer also passed favourable comments on him that he was punctual, hard-working, a fast learner at work, and a job placement would be reserved for him after settlement of his present case.

18.  D1 is mentally and physically fit for detention in a Rehabilitation Centre or a Training Centre. Based on the information available and general assessment of his behaviour and attitude whilst on remand, he is considered more suitable for detention in a Rehabilitation Centre.  As I observed, the assessment officer did not state any specific reason in support of his recommendation.  I do think rehabilitation is important to a young offender but the offence committed by D1 is too serious to be dealt with by training in a Rehabilitation Centre.  Paragraph [50-40] in Sentencing in Hong Kong stated the following:-

“The objective of the rehabilitation centre programme is to provide an intermediate sentencing option somewhere between, on the one hand, the training centre and, on the other, a non-custodial order… Those selected for this punishment will be young offenders who are guilty of offences which can properly be dealt with through custodial sentences of short duration… it is necessary, before a rehabilitation centre order can be made, for the court to consider whether the offender is apparently a person for whom a short-term custodial sentence is appropriate…”

19.  D1 is a first offender.  He has shown remorse by his timely plea and is entitled to one-third discount of his sentence.  I have taken into consideration of the sentence passed on D3 the main culprit was 2 years’ (24 months’)  imprisonment after one third discount was given, whereas D1 has since his arrest been remanded in custody for over 10 months by now.  Although he was the only one who used violence on PW1, his is still less culpable than D3 who was the mastermind.  For fairness to him, if imprisonment is to be imposed on him, the sentence should be less than what D3 received.  For the reasons stated above, I am of the view that the proper sentence to be imposed on D1 is imprisonment and I adopt 30 months as starting point and reduce it to 20 months for his timely plea.

Sentence

20.  D1 is sentenced to imprisonment for 20 months.