HKSAR v. SIU PUI YUEN

DCCC 276/ 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.276 OF 2011

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Reasons for Sentence

1. There are 2 defendants in this case. I deal only with D1, who is being jointly charged for Robbery, Assault with intent to rob and Theft. D1 pleaded guilty to all 3 charges, admitted to the summary of facts and was convicted. D1 was 16 years and 10 months old at the time of conviction and sentence.

Facts

Charge 1: Robbery

2. Charge 1 took place on 30^th December 2010. At around 1:15pm, D1 and D2 approached a 15 year old boy in an internet café and D1 told the boy that he was there to collect protection fees, that he should quickly give him the money or D1 will hit him with a torch that he was holding. D1 said that while swinging an 8 inches long torch.

3. The boy was scared and took out his wallet with $460 cash inside. D1 took 4 $100 bank notes from the wallet and told the boy that he only wanted $360. D1 gave a change of $40 to the boy and put the 4 $100 notes into a red packet. D1 told the boy to look for D1 should he be bullied in future. D2 stood beside D1 throughout the incident. It is noted that D2 is 18 years old.

4.  After D1 and D2 left the internet café, the matter was reported to the Police who arrived at the scene shortly to investigate. During the investigation, D1 returned to the café and was identified by the boy. D1 was arrested and the torch, a $500 bank note, 4 $100 bank notes and 1 $50 bank note was found on him. D1 remained silent under caution. D1 was subsequently granted Police bail.

Charge 2: Assault with intent to rob

5.  Charge 2 took place on 4^th February 2011, 36 days after charge 1 and whilst D1 was on bail.

6.  At around 9:45pm, 20 year old male victim Mr. Wong was walking alone the street in Mongkok when he was suddenly pressed down on to the ground and punched by someone for about 10 seconds. Mr. Wong managed to look up and saw D1 and D2. There was no one else around. One of the 2 said to Mr. Wong to surrender his money and that they did not want to cause trouble. Mr. Wong replied that he did not have any money. D1 and D2 punched him for a few more times. One of the 2 then said to Mr. Wong to show him his wallet, but told him to forget it if he only had $100 odd. Mr. Wong then took out his mobile phone to call the Police. D1 and D2 fled.

7.  Mr. Wong was later taken to the hospital and was found to be suffering from tenderness on his left chest wall and left arm and redness on his left thigh.

Charge 3: Theft

8.  20 hours later, at around 5:45pm on 5^th February, while 28 year old Ms. Lee was walking alone on the street in Mongkok, D1 suddenly snatched her handbag from behind. D1 and D2 ran and Ms. Lee gave chase while calling for help. During the chase, Ms. Lee found her handbag abandoned in an alley. Ms. Lee continued the chase and shortly found D1 and D2 subdued by passers-by. D1 and D2 were arrested at around 6:10pm. D1 remained silent under caution.

9.  The handle of the handbag was torn in the course of the snatching but nothing was missing from it when it was recovered.

10.  In later video recorded interviews, D1 claimed under caution that he and D2 approached the boy in charge 1 to borrow money from him. The boy lent them $400 cash and they returned $40 to him on the spot. The place was dark and so D1 used his torch light to light up the place. After leaving the café, D1 realized he had left a charger there and so he returned to get it but was arrested by the Police.

11.  In relation to charge 2, D1 said he did push Mr. Wong to the ground and himself and D2 started punching him. They punched him because D2 had identified Wong to be someone whom D2 had grudges with. They fled after the assault to drink alcohol.

12.  In relation to charge 3, D1 said they saw Ms. Lee carrying a handbag and decided to snatch it. D1 and D2 had agreed to share the profits. They followed their victim for about half a minute and then D1 snatched the handbag from behind. When they were fleeing, D1 discarded the handbag.

Previous

13.  The defendant was convicted of trafficking in dangerous drugs on 28^th March 2011 and was sentenced to the DATC on 26^th April.

Mitigation

14.  A background report was prepared on the defendant pending sentence. There is nothing in the report that would have significantly affected the sentence.

15.  The gist of the defendant’s mitigation is that the circumstances of the offences was not as serious as those dealt with in the various sentencing authorities and that the defendant is of young age.

Sentence

16.  D1 is 16 years old and 10 months at the time of sentence. He was 16 years and 5 months old when he committed the offence in charge 1.

17.  Charges 1 and 2 are excepted offences under the Criminal Procedure Ordinance, Cap.221. I am aware of the cases of Yau Wing Hong [1995] 3 HKC 95 and Law Ka Kit [2003] 2 HKC 178 concerning extreme youth as a mitigating factor in robbery cases. Although the circumstances of the robbery in those two cases are far more serious than our present case, the principle regarding what age can be considered as extreme youth still applies. I find that the age of the defendant at 16 years and 10 months in our present case cannot be considered as extreme youth.

18.  It is obvious that the defendant was totally out of control and I find that in sentencing young people like him the court has to sent out the message that at 16 years old, a young person should and must be held responsible for their actions. Should they choose to treat the law with disregard, expect the full force of the law and be prepared to suffer the consequences.

Charge 1:

19.  In relation to charge 1, the robbery is not the worst of its kind and the weapon involved was a torch light. The defendant was 16 years and 5 months old when he committed charge 1.

20.  In the case of Mo Kwong Sang, the Court of Appeal laid down general guidelines for sentencing armed robbery cases:

“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

13. If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

14. If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

15. These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

16. These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

17. Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

21.  In our present case, the defendant committed charge 1 jointly with another person, he threatened the victim and there is also a suggestion of triad connection.

22.  I think that bearing in mind those aggravating factors and then balancing them with the relatively young age of the defendant, a starting point of 4 years and 6 months’ imprisonment is appropriate.

23.  I will grant the defendant the full one third discount in recognition of his guilty plea and sentence him to 36 months’ imprisonment on charge 1.

Charge 2

24.  In relation to charge 2, the defendant committed the offence whilst he was on bail for charge 1.

25.  Assault with intent to rob carries the same maximum punishment as robbery, which is that of life imprisonment.

26.  Again, the assault was committed by the defendant jointly with another on the victim, which is an aggravating factor.

27.  I think that bearing in mind the aggravating factor and then balancing it with the relatively young age of the defendant, a starting point of 4 years and 6 months’ imprisonment is appropriate.

28.  I will grant the defendant the full one third discount in recognition of his guilty plea and sentence him to 36 months’ imprisonment on charge 2.

Charge 3: Theft

29.  The sentence guidelines for snatching is that of between 12-15 months’ imprisonment.

30.  I will adopt a starting point of 15 months’ imprisonment, reducing it by 1/3 to 10 months’ imprisonment in recognition of the defendant’s plea of guilty.

Totality

31.  In view of the fact that charge 2 and 3 were committed by the defendant whilst on bail for charge 1 and in view of the fact that charge 3 was committed just under 20 hours after charge 2, but bearing in mind the principle of totality, I will order that 4 months of charge 2 and 2 months of charge 3 be served consecutively to the sentence in charge 1, the balance to be served concurrently.

32.  The defendant is therefore sentenced to a total of 36+4+2=42 months’ imprisonment. I order that the DATC order previously imposed on the defendant be discharged.