HKSAR v. SUEN KAM FOON

DCCC267/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 267 OF 2009

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Reasons for Sentence  

1.  There are two defendants in this case.  They each pleaded guilty to one charge of conspiracy to rob, with which they are jointly charged.  Sentencing of D1 was adjourned for matters parties brought up.  The same reason for adjourning sentencing may also apply to D2.  However, Counsel acting on his behalf urged me to sentence him today.  Having balanced the situation carefully, bearing in mind on one hand the desirability for co-defendants to be sentenced together by the same judge and, on the other hand, the nature of sentence I am to impose on D2, I agree that it will be fair and in the interest both of public justice and the defendant himself that he should be sentenced now.

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 his behalf. 

3.  The facts of the case as revealed by the Summary of Facts which both defendants admitted may be summarised as follows.  The conspiracy had in fact been carried out and a robbery did take place.  The victim was a middle-aged lady who was a partner of a karaoke establishment.  There was a plan to sell her shares.  On the day in question, she received in a noodle shop $150,000 from a Mr Yang, a conspirator mentioned in the charge, being the money from someone else to purchase her shares.  The victim put the money into her handbag and left the noodle shop.  Soon on the street, somebody pulled her hair from behind and her head was hit a few times.  As a result, she fell.  On the ground, she was attacked by more than one person.  She was kicked and punched all over her body.  The attack lasted for about half a minute.  D1 then tried to snatch her handbag.  The victim put up a resistance and shouted for help.

4.  After a struggle, D1 managed to snatch the bag away from the victim.  At that juncture, another man told D1 to run.  D1, D2, the man who told them to run - that is the wanted person - and another man Li, who is also named as a conspirator, fled.  D1, D2 and the wanted person then boarded a taxi whereas the other man ran towards a different direction.  The taxi had not moved before arrival of police.  The men alighted from the taxi and fled.  D1 was subdued and arrested.  D2 was later arrested based on the information the police obtained.

5.  Under caution, D2 admitted, inter alia, that he had committed the robbery out of greed.  In a subsequent interview, he said D1 was his triad protector and he told him that the wanted person wanted to find someone to do a job.  When they met before the incident, the wanted person said it would be a chopping job and he, that is D2, was to act as a lookout.

6.  On the day of the robbery, the wanted person said the chopping job was cancelled but they would rob a woman instead.  D1 and the wanted person would physically rob the victim; D2 was to hail a taxi and to wait for them nearby.  He performed his duty as planned and hailed a taxi.  Then the wanted person phoned him and instructed him to make a false report to the police so as to distract the police officers who had appeared in the vicinity.  He made a false report of assault and the police officers left the scene.  Later, he saw D1 and the wanted person being chased.  Eventually, they alighted from the taxi they had boarded and fled.  He was subsequently promised a reward of $1,500.

7.  The victim was injured during the robbery.  She had bruises on her right knee and swelling on her right head. 

8.  This is a serious case.  The robbery was premeditated.  At least four men were involved.  The victim was a lone lady.  It was carried out in the afternoon at a busy Tsim Sha Tsui road.  Force was used by at least two persons against the victim, causing her not insignificant injuries.  On the other hand, no weapon was used.

9.  There is no tariff for this type of offence.  Each case must be determined on its own facts.  For a case like the present one, if not for the age of the defendant, imprisonment of a substantial term is appropriate.  D2 was born on 8 April 1993.  His age now exceeds 16 but at the time of offence, he was 15 years and 9 months of age.  He has committed an offence of theft in each of 2001 and 2003.  For both, a superintendent’s discretion was exercised.

10.  In mitigation, learned counsel for the defence stressed the age of D2.  Learned counsel also highlighted the relatively minor role D2 played in the incident.  He was not directly involved in the robbing and assault of the victim.  In this regard, I note that despite D2 played a relatively minor role, he joined this illegal enterprise, knowing its degree of seriousness.  He played an active part in it, thereby facilitating the implementation of the plan.  I am also told that D2 is now remorseful and has full support of his family. 

11.  Before sentence, I acceded to the request of learned defence counsel to adjourn the matter for reports.  Background report, Community Service Order, Rehabilitation Centre, Detection Centre and Training Centre reports were obtained.  Before adjourning the matter, I had advised the defendant that an immediate custodial sentence should be considered in a case like this, and the purpose of obtaining the reports was to facilitate the court to know better the background of the defendant himself and the case.  The court is under no obligation to accept and follow the recommendation but, rather, is under a duty to impose the most appropriate sentence.  Of course, all sentencing options remain open until a decision is made.

12.  When I asked for the reports, my main consideration was the young age of D2 and that, strictly speaking, he did not have a criminal conviction record.  Now, from the reports, I learn that he was on 6 May 2009 convicted in the magistrates’ court of an offence of conspiracy to rob.  Sentencing in that matter has been adjourned for reports.  If learned defence counsel on the last occasion had in his contemplation such development and informed the court, at the least, it would have been quite unlikely that I would have asked for a Community Service Order report. 

13.  In any case, Community Service Order is not recommended.  Having read the report, I agree to the opinion of the officer.  With all the information now available, in all the circumstances, Community Service Order is not appropriate. 

14.  The reports reveal the following personal background of D2.  He was brought up in a working-class family, being the youngest amongst four siblings.  His elder siblings do well in studies.  His own academic performance was amongst the average in the primary school but started to deteriorate when he was promoted to Form 2. 

15.  D2’s father has been cohabiting with another woman in the mainland, and four children were born.  In 2004, his father arranged the four children to come to live in Hong Kong.  The harmonious marital relationship between his parents since then could no longer be maintained.  Later, his father moved away to live with those four children and seldom returned.  At last, in 2007, his parents divorced.

16.  On 12 April 2007, a care or protection order was granted on D2 which expired on 11 April 2008.  His performance during the supervisory period was reported to be satisfactory.  Despite the improvement, disappointingly, he later committed this and the other case of conspiracy to rob. 

17.  D2 dropped out from Form 3 in early 2008.  He had engaged in short-term jobs and was mostly idle at home.  In September 2008, he resumed study in Form 4 in an evening school.  He told the probation officer that he committed the present offence out of greediness to gain quick money for the coming festive time.  He acted as a lookout.  The officer said D2 showed his remorse.

18.  In HKSAR v Wong Chun Cheong [2001] 4 HKCFAR 12, the Court of Final Appeal indicated that in determining the appropriate sentence for a young offender, it was necessary to have regard, inter alia, not only to the characteristics of the offender but also to the circumstances of the offence. 

19.  In HKSAR v Law Ka Kit [2003] 2 HKC 178 where the applicants were aged 14½ years at the time of an offence and 15 years at the date of sentence, Stock JA said, “there are cogent considerations which militate against sentencing persons at this age to prison.  One is naturally cognisant of the immaturity of youth though maturity will differ widely from offender to offender, the pressure and influences which can be brought to bear especially when one notices a youth committing offences in the company or upon the direction of others who are older, and of the desirability of rehabilitating young offenders in settings more conducive to rehabilitation than may result from long-term imprisonment.  Yet, it has for long been recognised that youth may pale into insignificance because of the magnitude or prevalence of the offence.  Cases of serious robbery fall within the band of cases where youth is not a strong mitigating factor.”

20.  The Court of Appeal reiterated in the case of HKSAR v Wu Yee Ki CACC513 of 2005 that robbery had for long been recognised as an offence for which an immediate custodial sentence should be imposed despite the youth of the offender. 

21.  As I have said, Community Service Order is plainly not appropriate.  In the report prepared by the Correctional Services Department, it was pointed out that D2 was medically unfit for detention in a detention centre.  It was further pointed out that he was mentally and physically fit for detention in a rehabilitation centre or a training centre, and there were places available for him.  From the information available and after a general assessment of his behaviour and attitude on remand, the officer considered him more suitable for detention in a rehabilitation centre. 

22.  I was told that sentencing in the other case the defendant is facing had been adjourned for a Young Offenders Assessment Panel report.  Such a report is often useful for the consideration of a proper sentence since it contains a recommendation with an overview of assessment after a joint social welfare and Correctional Service investigation.  However, in the circumstances of the case, its usefulness will be less significant than usual, in particular, as the sentencing options of placing the defendant under the supervision of Social Welfare Department are all obviously inappropriate.  I therefore do not consider any adjournment for further report or to have sight of a Young Offenders Assessment Panel report necessary.  Learned counsel for D2 agrees to this view.

23.  I have given very serious thought as to whether D2 should be sentenced to imprisonment in the light of the seriousness of the offence.  Having taken into account the mitigation, the relatively young age of D2, his lack of previous conviction record though his record cannot be described as impeccable, his role in the crime, the information in the report as well as the existence of special circumstances on the papers which justify a lenient view to be taken of the facts, I am of the opinion that it will be in the best interests of the community and the defendant himself that he be detained to receive rehabilitative training rather than to be imprisoned.

24.  Training in a rehabilitation centre is recommended.  Subject to section 4 of the Rehabilitation Centre Ordinance and section 4 of the Training Centre Ordinance, the court is not under an obligation to follow the recommendation stated in the report.  I have considered the objective as well as the regime and means of training of the different institutions of Correctional Service Department, bearing in mind the seriousness of the present case and the role D2 played in it. 

25.  I have also borne in mind the special circumstances on the papers which I have mentioned earlier.  I do not consider an order to detain D2 in a rehabilitation centre appropriate.  Such a treatment is not sufficient to reflect the seriousness of the offence, and I do not consider the type of training there is apt for the rehabilitation of D2.  Besides, section 4(2)(e) of the Rehabilitation Centre Ordinance provides that a detention order shall only be made against a person who is apparently an offender, for whom a short-term custodial sentence is appropriate.  I do not consider D2 fits this criterion in the circumstances of this case. 

26.  On the other hand, I am of the view that training in a training centre is expedient to the reformation of D2 and for the prevention of crime, having regard to his character and previous conduct and to the circumstances of the offence.  And I am satisfied that it is in the interests of the community that he should be so detained for training.  In the training centre, the defendant will receive education and vocational training as well as character development training.

27.  In making the decision, I have considered all the circumstances of the case, including mitigation, in particular, the special circumstances I mentioned earlier.  I have also taken into account the possible length of training in a training centre despite it is not a predominant sentencing consideration and come to the view that such a possible length of deprivation of freedom is not out of proportion in the circumstances of the present case.

28.  Based on the matters aforesaid, I order the defendant to be detained in a training centre for training.