HKSAR v. CHEUNG HONG LUNG AND OTHERS

DCCC1037/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1037 OF 2011

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Reasons for Sentence

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1. The defendants were three of five defendants who pleaded not guilty to charges of robbery and assault with intent to rob.

2. At the outset of the trial, the three defendants indicated that they were prepared to enter guilty pleas to a charge of common assault, but these pleas were not acceptable to the prosecution.  Given the evidence, this was the correct decision and after trial I convicted all three defendants of both charges. 

3. The victim in the 1st charge was a 16-year-old boy.  At 1 o’clock in the morning on 18 June 2011, he was walking alone near a football pitch at Plover Cove Road, Tai Po, holding his iPhone which was valued at $3,000.  When he reached this area, it was very dark.  Suddenly he was attacked by the three defendants and two other youths from behind.  One of them grabbed his neck and the others punched and kicked him, causing him to drop his iPhone onto the ground.  The males then fled and after the incident he found that his iPhone was missing. 

4. Fortunately the injuries sustained by the victim were not serious.  He was diagnosed to be suffering from a minor head injury, right forehead swelling, nose bruises and swelling and tenderness. 

5. Ten days later this gang of youths struck again. This time, at 10 past 2 in the morning on 28 June, the victim was a 15-year-old boy who was walking along a footbridge at Plover Cove Road, Tai Po, on his way home.  He was holding a mobile phone in his hand and had a PSP game device in his trousers pocket.  Suddenly he was attacked from behind.  He initially managed to keep hold of his phone.  His game device fell to the ground but he managed to retrieve it.  During the attack, some of the males were trying to steal his mobile phone.  He was punched and kicked and eventually the attackers fled.  His game device, which was valued at $1,000, was broken after the incident. 

6. Again it was fortunate in this case that the injuries sustained by the victim were not serious.  There was tenderness at his head and left hip area, abrasions at his right shoulder, left elbow and right knee. 

7. The following night, or in the early hours of the morning of 29 June, police officers were on patrol in the Plover Cove Road area when they spotted the gang of youths.  They were arrested.  The three defendants before the court, D2, D4 and D5, indicated to the police that they accepted that they assaulted the two victims but denied having robbed them. 

8. I adjourned the case on the last occasion so that I could have the advantage of Training Centre reports.  I did this because of the age of the defendants. 

9. This offence would normally attract a sentence in the range of 4 years’ imprisonment after trial.  There are two charges, so I would have to consider the question of totality. 

10. The 2nd defendant is 16 years of age and I note that he was 15 at the time of the offence.  He left school in May 2011.  He has had brief working experience.  In mid-July 2011, I am told by the reports, that he was a part-time waiter with his brother and was laid off after two weeks. Having been arrested and given bail for this offence, whilst on bail he committed an offence of trafficking in 3.05 grammes of heroin.  He was arrested on 3 August 2011 and was remanded in custody following his arrest in the Tuen Mun Children and Juvenile Home, and he was subsequently sent to a Training Centre for that offence. 

11. The defendant has had a difficult upbringing. His father has a criminal record and was addicted to drugs.  His parents were divorced in 2000.  His mother was frequently away from home and his father took little responsibility for him.  He was brought up by his paternal grandmother who did her best.  However, she was not able to control the defendant.  He made no real effort at school and associated with undesirable peers.  

12. In considering the appropriate sentence for this defendant, I have considered the fact that another offence was committed whilst he was on bail for this offence and that ordinarily any sentence imposed for an offence committed on bail would be ordered to run consecutive to the other offence. 

13. I take into account that, as with the other defendants, not much of the prosecution case was challenged, and as with the case of D4 and D5, it was a narrow issue which had to be decided by the court. I also take into account in his case that he was 15 years of age at the time of the offence.  Had he been on his own or with younger people, it would have been dealt with in the Juvenile Court.  I also take into account that he has been in custody since 5 August 2011. 

14. Taking those factors into account, I have decided to follow the recommendation and make a Training Centre Order in his case. 

15. The 4th defendant is 19 years of age and has a clear record.  He left school in 2010.  He did not participate in the HKCEE examination process.  He has had a number of jobs, none of them lasting very long.  His father left when he was 3, spending most of his time working in China.  His mother was a beautician and she and her husband separated in 1998 and he was brought up by his maternal grandmother.  When he was a student, he had part-time jobs to contribute to the family finances.  His school performance was below average.  He spent much of his time wandering the streets in the area he lived with undesirable peers.  I am told that his mother and aunts and grandmother are present in court today to show their support.  Submitted to the court have been letters of support from his mother, from his aunt and from a former employer.

16. I have considered all the circumstances in this case and I have decided to impose a Training Centre Order in respect of this defendant.

17. The 5th defendant is 16 years of age.  As with the 2nd defendant, he was 15 at the time of the offence and has a clear record.  He comes from a decent hardworking family background.  I know that this offence and the court proceedings have caused his family great anguish and stress.  He has a sister aged 11 who is a student.  I am told that in September 2011 he attended a course in hairdressing and did extremely well in that course. 

18. His parents are both devoted Christians and the problems with the defendant started in his early teens.  When he reached Form 4, he started to associate and hang around with people in neighbourhood playgrounds.  Disciplinary problems started at school and he did not complete his Form 4.  He associated with gang-affiliated peers.  I have had letters of support on behalf of the Church and an appraisal from the development programme that he attended and also a letter from the defendant. 

19. Counsel for the defendant has submitted his student report card for the academic year 2009-2010.  This indicates that academically and also behaviourally he was doing extremely well at that stage, and had he continued to apply himself to his studies, he would have had a good future.  Fortunately, the Vocational Development Programme indicates that his conduct record was excellent and it seems that he has a talent for this kind of work.  He is described in that report as being a very smart boy who learns easily and grasps new knowledge. 

20. Again, I have decided in this case that the appropriate sentence is one of the Training Centre.  The defendant will be detained in a Training Centre.