HKSAR v. NAWAZ SHAMIR SUGUITAN AND OTHERS

DCCC 782/2020 & DCCC 39/2021 (Heard together)

[2021] HKDC 1656

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 OF 2020

________________________

________________________

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 39 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  (i)  DCCC 782/2020 has 5 defendants.

    (ii)  DCCC 39/2021 has 3 defendants.

    (iii)  All the defendants in both cases pleaded guilty to their respective charges in DCCC 782/2020 and DCCC 39/2021.

    (iv)  D2 and D5 in DCCC 782/2020 are also D1 and D2 in DCCC 39/2021 while D3 in DCCC 39/2021 is unrelated to DCCC 782/20200.

2.  DCCC 782/2020

	Charge	Date	D1	D2	D3	D4	D5
1	Burglary at Colourmix	29.1.2020	PG			PG	PG
2	Attempted Burglary	29.1.2020	PG
3	Burglary	20.3.2020	PG		PG		PG
4	Burglary	20.3.2020
5	Burglary	20.3.2020			PG
6	Burglary	20.3.2020	PG
7	Burglary	20.3.2020	PG	PG		PG
8	Burglary	20.3.2020			PG
9	Theft	25.5.2020	PG	PG
10	Making off without payment	25.5.2020	PG
11	Theft	26.5.2020	PG	PG

DCCC 39/2021

	Charge	Date		D1			D2	D3
	Robbery	23.7.2020		PG			PG	PG

3.  DCCC 782/2020

D1: Charges 4 and 5 be left on court file

D2: Charges 2 and 10 be left on court file

D4: Charges 2 and 3 be left on court file

D5: Charges 2 and 6 be left on court file

All these charges are left on court’s file now and ordered not to be proceeded with without the leave of the court.

DCCC 782/2020

SUMMARY OF FACTS

Charge 1 (against D1, D4 and D5)

Charge 2 (against D1 only)

4.  The 2 shops in both charges are located in the same shopping mall.  Both offences took place on 29 January 2020.

Charge 1: 21 bottles of perfumes were stolen from Colourmix. Total value was $6,877. D4’s fingerprint was found at the bottom of the rolling gate of Colourmix.

Charge 2: D1 and two others attempted to lift the gate of Shop 3 for about 10 seconds but unsuccessful. His finger print was found on the rolling gate of Shop 3.

5.  D1, D4 and D5 were arrested on 30 January 2020.  During the house search, it was found that:-

(a)  8 bottles of perfume from D1’s home;

(b)  3 bottles of perfume from D4’s home;

6.  CCTV captured that all 3 defendants entered Colourmix with D4 lifting the gate.   D4 acted as a lookout.

Charge 3, Charges 5 to 8 (the Fusion burglary)

7.  These 5 charges of Burglary took place on 20 March 2020 in Fusion supermarket in Mui Woo, Lantau. 

8.  When the supermarket was closed on 19 March 2020, the back door was unlocked.  Next morning, a staff found the back door was opened, some goods were stolen, HK$5,000 cash and HK$1,800 cash coupon were missing.  The total added up value was $21,650.40.

9.  The CCTV of the supermarket captured D1 to D5 entered Fusion supermarket on numerous occasions from the back door between 1:10 am to 6:02 am.  They took snacks, drinks and 3 tills.

Charge 3 (against D1, D3 and D5)

10.  It took place between 1:11 am to 1:15 am.  CCTV of Fusion captured that D1, D3 and D5 took items from the shelves and left with some items in their hands.

Charge 5 (against D3)

11.  It took place between 2:46:55 am to 2:48:15 am.

12.  D3 entered the Supermarket with another person.  He took items from the shelves.

Charge 6 (against D1 only)

13.  It took place between 4:47 am and 5:07 am.

14.  D1 took a recycle bag near a drawer and gloves from a drawer.  D1 tampered the drawers and stole some items.

15.  D1 left at 5:07 am with a recycle bag in his hand.

Charge 7 (against D1, D2 and D4)

16.  It took place between 5:43 am to 5:44 am.

17.  D1 entered the supermarket with a knife.  D2 and D4 tempered the cashier drawer.  D1 chopped the drawers with a knife and took away one of the tills with cash and cash coupons placed therein.

18.  They left the supermarket with drawer/tills in their hands.

Charge 8 (against D3 only)

19.  It took place between 5:58 am to 6:02 am.

20.  D3 entered the supermarket empty handed and left with something on his arms.

21.  In their respective record of interviews:-

(a)  D1 admitted stealing foods and drinks from the supermarket. D1 also implicated D4 who took the tills, but he could not open them and threw them into the sea.

(b)  D2 admitted stealing some alcoholic drinks from the supermarket. Someone gave him $2,000 of which he had spent it all.

(c)  D3 admitted entering the supermarket with the other 4 defendants to steal some snacks.

(d)  D4 took away the tills and other items with others. The $3838.50 found under his pillow was the stolen cash from the supermarket. They went to a place near the pier and consumed the stolen foods.

(e)  D5 admitted to have committed the offence of burglary. (Charge 3)

Charge 9 (against D1 and D2 - Theft)

Charge 10 (against D1 - Making off without payment)

22.  At about 10 pm, on 25 May 2020 D1, D2 together and Lanuza took a taxi from Tung Chung MTR station.  Lanuza got off first.  When the taxi reached at Yat Tung Estate, D1 who was sitting in the front passenger seat, took the taxi driver’s cash box which contained about $600. (Charge 9)

23.  D1 left without paying the taxi fare of $20.5. (Charge 10)

24.  Under caution, they said they they had split the stolen money among themselves. 

Charge 11 (against D1 and D2 - Theft)

25.  At about 3:19 pm on 26 May 2020, D1 and D2 each took a bottle of whisky, hid the bottles under their clothes and left the shop without payment.  The total value of the two bottles of whisky were $176.

DCCC 39/2021 - Robbery

SUMMARY OF FACTS

26.  PW1 was a shop owner selling luxury watches and jewellery in Granville Road, Tsim Sha Tsui.

27.  At about 7:30 pm on 23 July 2020, after he closed his shop, walked across the road, he was hit on his head and pushed to the ground by 3 robbers for about 20 seconds.  A Richard Mille watch valued at $1.4 million was snatched.

28.  CCTV showed that D1, D2 and WP1 punched and kicked PW1 for 15 seconds. D1 snatched the watch.

29.  CCTV also captured D3 walked along Nathan Road with D1, D2, WP1 and WP2 at around 5:17 pm before the incident.  At 5:30 pm, D3 led D1, D2, WP1 and WP2 to the junction of Granville Road and Granville Circuit.  D3 left.  At 7:30 pm, D1, D2 and WP1 went after PW1.

30.  D1, D2 and D3 were arrested on the following days.  Both D1 and D2 admitted that they committed the robbery with others for a reward of $5,000 each.  They also threw away their top layers of clothes as they had another set of clothes underneath.  D1 said that he gave the watch to D2 in the taxi while D2 said that he gave the watch to WP1.

31.  D1 further admitted that:-

(1)  One day before the robbery incident, he met D2 who told him there would be a job involving hitting a man with a reward of $5,000.

(2)  Next day, D1 and D2 travelled from Tung Chung to Jordan by bus.

(3)  When they arrived, they were briefed by someone:-

(i)  About the plan of the robbery;

(ii)  Showed a picture of PW1;

(iii)  D1, D2, WP1 and WP2 waited in the vicinity for PW1 to appear;

(iv)  D2 would be responsible to take the watch.

32.  In the record of interview, D2 said that Kunal offered him a job for $5,000.  D1 and D2 met Kunal and his friends. Then Kunal left.  D3 brought D1, D2, WP1 and WP2 to the shop at 5:30 pm and instructed them to wait for PW1 to “bring him down” and to “take the watch”.  D2 would be responsible to take the watch.

33.  Under caution, D3 said that he did not commit the robbery, he acted as a lookout to watch if there was any police, the other four responsible to rob PW1’s watch.  He received $1,000 as reward. D3 met up with others after D2 sent him a message that the robbery was done.

34.  In Mei Foo, D3 met up with D2 and 3 other males.  D2 gave the watch to “Akmal”. 

CRIMINAL RECORD

D1: One superintendent caution for making off without payment in December 2017.

D2: (He is also D1 in DCCC 39/2021)  Clear record

D3: binding over order in May 2020 for not committing any theft acts.

D4: One superintendent caution of making off without payment in December 2017.

D5: (He is also D2 in DCCC 39/2021)  Clear record

D3 in DCCC 39/2021: Clear record

MITIGATION

D1’s mitigation

35.  D1 is now 19 years old.  He was 17 at the time of committing those offences.  His father passed away when he was at kindergarten.

36.  D1 had been drinking vodka the nights before the commission of all the offences.

37.  His timely pleas indicated his regret and remorse.  He committed those offences with sheer stupidity, immaturity, gullibility and undermining the consequences of his misdeeds.  This was the result of himself did not know the limits of his drinking.  Counsel said that the defendant went through a period of “wild-phrase” from January to May 2020.

38.  On the academic side, D1 had attained a grade A* in Chinese subject in his GCSE examination in June, 2018.  However, he lost his interest to study and failed to take all the examinations in 2021.

39.  Now, D1 is determined to pursue his studies.  He wants to put his criminal history behind him and moves on.  His mother notices his improvement at home and asks for leniency in sentencing.

40.  In this connection, counsel asks this court to consider probation reports for all the offences having regards to his guilty pleas, remorse and youth.  

41.  Today, D1 submitted a letter to this court saying that he has learnt self-discipline and control during this period of remand.  He asked for a shorter sentence, such as detention order.  I told counsel that this is not an appropriate order and I will not consider it, given the nature and numbers of offences he has committed. Clearly, D1 has leant about the period of detention in detention center is shorter than training center.

D2’s mitigation (also D1 in DCCC 39/2021)

42.  He is now 21, he was 19 at the time of committing the offences and has a clear record.  He resides with his parents before he was remanded.

43.  The total loss to Fusion supermarket was not substantial (HK$21,650)  and the offence itself was an “opportunistic” burglary as the staff of Fusion forgot to lock the backdoor.

44.  D2 entered Fusion supermarket once at 5:44 am when no one was expected to be presented in Fusion.

45.  However, he committed the offence of robbery while he was in high court bail (4 July 2020).

D3’s mitigation

46.  D3 is now 21 years old.  He educated up to Form 4.  He lives with his family in a public housing estate.  He has been unemployed since May 2020.

47.  Counsel for D3 considered that the 3 charges of “Fusion Burglary” should be viewed as one incident.  Therefore, all the three entries by D3 could have been charged as a single burglary.

48.  Counsel for D3 also pointed out that the back door of the supermarket was not locked.  Stolen property was not high.  It was an opportunistic burglary.  Counsel suggested a lower starting point as D3 “was akin to a sneak thief” in HKSAR v Cheung To Ming (2006)  2 HKLRD 259.

D4’s mitigation

49.  D4 is now aged 19.  He came to HK with his family from the Philippine in 2011.

50.  He graduated in 2021.  Since June 2020, he worked part-time at the Sheraton Hotel as a cook. 

51.  At school, he was the captain for the school’s rugby team. He has recently been offered to participate in the trials for the HK U20 Rugby team. 

52.  Today I am told that he will put his academic studies first and be on top of it.

53.  D4 had determined to improve his studies in order to meet the minimum requirements to further his studies.  All the teachers who had known him for some time praised for his hard works and dedications to improve in his academic achievements.  He had shown great remorse for his misdeeds.

54.  In his own letter, he wanted to go to university to continue his study, to contribute back to the society in the future.

D5’s mitigation (also D2 in DCCC 39/2021)

55.  D5 is now aged 19.  He was 17 at the time of committing the burglary offence and 18 at the time of committing the robbery offence.

56.  He has a clear record at the time of committing these offences.

57.  He used to live with his mother, 2 elder brothers and grandmother in Mui Wo.  His mother passed away during this period of remand.

58.  His father lives apart and is a senior technician.

59.  Both of his father and girlfriend wrote letters to this court to support him.  I have read them all.

60.  D5 has been remanded for 13 months.

61.  The defence said that it would be for the best interest of D5 and the society that he be returned to school to complete his education as soon as possible.  Otherwise, his prospects in the future will be very limited without a proper education.

D3 in DCCC 39/2021 (Robbery)

62.  D3 will turn 21 in a few days’ time.  He lives with his parents.  He has a clear record at the time of the offence.

63.  He educated up to Form 2, he has continuous employment as a labour.

64.  In the present case, his role was a lookout, but he left when the robbery was being committed by the other defendants.  Prior to the robbery taking place, he sent some photos of the scene to Kunal.  D3 received a reward of $1,000.

SENTENCING PRINCIPLE

DCCC 782/2020

65.  It is accepted by all counsel that for non-domestic premises burglary, the starting point is 2 years and 6 months.

66.  As point out in HKSAR v Sim Ka-wing CACC 450/2020 and HKSAR v Cheung To Ming [2006] 2 HKLRD 259 that the starting point should be lowered if it is a case of opportunistic burglary.  Such as in the present case, the backdoor of Fusion Supermarket was not locked.

67.  On the other hand, sentence can be adjusted upward if there is any aggravating factor as stated in the case of HKSAR v Cheng Wai Kai CACC 338/2007, such as:-

a. The offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

b. The offence is committed by two or more people;

c. The offence targets at substantial premises and involves substantial properties;

d. The offender is a professional burglar and not just an opportunist;

e. The offender has previous convictions, particularly previous conviction of similar nature, and

f. The offender commits multiple offences.

68.  In the present case, charges 1, 3 and 7 were committed by more than one defendants.  I accepted that for all the burglary charges, there was no use of equipment to break into the premises.

69.  As to the stolen properties:-

a. Charge 1:- a total of 21 bottles of perfume

b. Charge 2:- there was no lost.

c. Charges 3, 5, 8:- there were no specific items being particularized in the charges except that the defendants took items from the shelves in Fusion supermarket.

d. Charge 6:- the CCTV captured D1 tampered the drawers and stole some items in Fusion supermarket.

e. Charge 7:- from the facts of the case and CCTV captured D1 carried a knife to chop the drawers while D2 and D4 tampered the cashier drawer. D1, D2 and D4 left the Fusion supermarket with drawers and tills in their hands.

f. The total loss in respect of the Fusion supermarket burglary is about $21,000. That included some liquors, chips, soda, $5,000 cash and $1,800 cash coupons.

70.  Charge 9 is the snatching of the taxi driver’s cash box.  It contained about $600.  It is well established in many cases that taxi drivers are vulnerable to thefts/robbery/assaults, they need to be protected.

71.  However, there is no violence being used or tools being employed in the commission of theft against the taxi driver.

72.  Mr Chow SC for D2 suggested that this should be viewed as a “snatching case” and an “opportunistic theft” as D1 was sitting in the front seat next to the driver.

73.  D2 knew what D1 was intended to do because he told D2 about his intention to take away the cash box.  D2 did not do anything to stop D1.  They shared the stolen cash ($600)  equally between themselves.  The offence was committed by D1 and D2 jointly.

74.  Mr Chow referred me to HKSAR v Yeung Kam-tung CACC 427/2012 that a sentence of 12 months was passed for a snatching case.

75.  While D1 counsel referred me to the case of HKSAR v Ravi Dass gurnam Singh HCMA 777/2012 that the Appellant was charged with making off without payment of a $268.5 taxi fare and snatched the mobile phone from a taxi driver. A sentence of 4 months after plea was upheld.

76.  In any event, there is no sentencing tariff for this type of offence.  As said in the judgment of Yeung Kam-tung that:-

“the circumstances of this type of offence can vary enormously and it does not lend itself to any particular tariff.”

77.  Charge 10 is the making off without payment of a $20.5 taxi fare.

78.  Charge 11 is theft of 2 bottles of whisky with a total value of $176.

79.  For charges 10 and 11, the usual sentence in the Magistrate court will be a fine, it all depends on the circumstances of the case and criminal record of the defendant.

80.  The age of the defendants is also a sentencing factor to be considered.  In DCCC 782/2020, D1, D4 and D5 are now 19 while D2 and D3 are now 21.  D3 in DCCC 39/2021 will turn 21 in a few days’ time.  TC order is not an option for those defendants who are 21 years old.

81.  According to S.109A(1)  of the Criminal Procedure Ordinance Cap. 221, for those defendants under the age of 21, I shall call pre-sentencing reports before I pass sentence on them. That is what I do for D1, I called a TC report. As to D4, I called a CSO report.

82.  While D5 in DCCC 782/2020 – he is still 19, I convicted him of a robbery offence in July 2020 which is an excepted offence.  According to S.109A(1A), it said that:-

“this section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by schedule 3.”

83.  Counsel also referred me to two cases:-

a. Secretary for Justice v Leung Hiu Yeung (CAAR 3/2016)

b. Secretary for Justice v Wong Chi Fung (CAAR 4/2016)

84.  In Secretary for Justice v Wong Chi Fung the Court of Final Appeal reaffirmed the position that where the facts warrant the sentencing court to take the view that the serious nature of an offence so clearly overrides any considerations personal to the offender, the court can determine without resort to obtaining information pursuant to section 109A, that the only appropriate sentence is one of imprisonment.

85.  In Secretary for Justice v Leung Hiu Yeung the Court of Final Appeal said that there will be exceptions when a young offender who has turned 21 by the time of sentencing should only be sent to prison as a matter of last resort and, for that purpose, the sentencing court will have to be alive to the possibility it may need to obtain reports.

86.  After careful consideration, I decline to call any pre-sentencing reports for D5 as detention in training centre or detention centre would not reflect the gravity of the offences he had committed (i.e. Burglary in March 2020, Robbery in July 2020 while he was on bail).  The only appropriate sentence is one of imprisonment.

D1

87.  The report regarding D1 is now available before me.  The report tells me that D1 was raised by his mother as his father passed away when he was 6 years old.  His mother has to work and therefore parental supervision over D1 was insufficient and ineffective.  He turned wayward when he entered secondary schools as he mixed with some undesirable peers.  His relationship with his family is just fair.  His has no interest in his studies, he failed in most subjects.

88.  He likes drinking and he took cannabis once a week which costs him $100 each time.  And I wondered where did he get the money from.  He claimed he had taken cocaine once in January 2020.

89.  As to D1, all the offences took place between 29 January to 26 May 2020. As his counsel described it, “a wild period of 4 months”.

90.  He committed the Fusion burglary offences (Charges 3, 6 and 7)  during the police bail period for the Colourmix burglary (Charge 1).  He further committed another set of offences (Charges 9, 10 and 11)  in May together with D2.

91.  Probation officer said that “he was carefree and evasive in attitude and impressed to be a loose youngster.  He neither learnt from his misdeeds nor mended his ways.”

92.  Rehabilitation and reformation is required for D1.  I accepted the probation officer’s recommendation that D1 should send to the training center for all the offences he had committed.  I therefore imposed Training Centre order against D1 for charge 1, 2, 3, 6, 7, 9, 10,11.  They are to be served concurrently.

D2

Charge 7

93.  In D2’s case, he committed the offence (Charge 7)  in March 2020 with D1 and D4.  This is an aggravating factor.  This is the most serious burglary charges among the 5 charges of the Fusion burglary incident in March 2020.  As tills and drawers were taken.  Those items contained cash ($5000)  and cash coupon ($1,800).  They amount to $6,800.  However, it cannot be said that it was a large sum.

94.  I accepted that it was an opportunities burglary as the back door of the supermarket was unlocked.

95.  I therefore imposed a starting point of 15 months, enhanced 3 months for the aggravating factors, reduced to 12 months after 1/3 discount.

Charge 9

96.  As discuss previously, regarding charge 9, I considered that a starting point of 6 months is appropriate, reduced to 4 months after 1/3 discount.

Charge 11

97.  As to charge 11, in normal circumstances, I considered that a fine would be sufficient for stealing a bottle of liquor.  However, D2 committed the burglary offence (Charge 7)  in March.  He then committed theft in 25 May and followed by another theft on 26 May.  He disregards any law and order.  His attitude in life is simply carefree. Within a space of 2 months, he committed 3 offences relating to dishonesty.

98.  In his own admission, he said that “he drank the bottle after stealing it”.  D2 had exhibited drinking problems as he disclosed that he drank with other before the commission of the burglary charge.  He also admitted that he took away alcoholic drinks from the Fusion supermarket.

99.  To this end, I adopted a 3 months starting point, reduced to 2 months after 1/3 discount.

Totality

100.  I also order 2 months from each charge that is charge 9 and charge 11, a total of 4 months be run consecutively to charge 7.  That arrives at a total of 16 months for charges 7, 9 and 11 for D2.

D3

Charges 3, 5 and 8

101.  As to D3, he faces 3 charges of burglary, namely charges 3, 5 and 8, all happened in the early hours of 20 March 2020.  While charge 3, he committed together with D1 and D5.  There was no evidence to suggest that he taken any valuable.  In his own admission, he had taken some snacks.

102.  I considered a starting point of 15 months for each charge is appropriate and be reduced to 10 months after 1/3 discount for each charge.  I also order all the sentence for the 3 charges be run concurrently.

103.  D3 is to serve a sentence of 10 months.

D4

104.  In D4’s case, he also had committed very serious crimes.  So serious that he could have possibly sentenced to training center or a term of imprisonment.

105.  The sentencing procedure of a young offender can always pose a particular challenge for the courts and is rarely straightforward.   On one hand, the courts have to strive for consistency in sentencing, while on the other hand, to divert the young offender from future crimes and be of good value to the society.

106.  In mitigation, I have been provided with a number of letters from his headmaster and teachers.  I have read them all.  They all said that D4 has the potential to excel and perform in his studies.

107.  He has proved himself that with determination and dedication, he can go to study in University.  He was accepted by the City University to study in an associate degree.  He paid the acceptance fee ($4,800)  by himself as he takes up a part time job in the Sheraton Hotel.

108.  I have called for a CSO report, the probation officer had complied a very lengthy and details report regarding D4’s upbringing and the circumstances of his changes since the commission of the present offence.

109.  In this report, I can see the changes of D4 from a bad boy to become a sensible and mature young man.

110.  He comes from a single parent family with 7 other half siblings.  He has never met his father who lives in Australia.  His mother has to work and therefore he has never received adequate parental supervision while his elder half siblings could not keep an eye on him.

111.  As a teenager without supervision, D4 started to hang out with dubious peers since F1.  He was cautioned for an offence of making off without payment under the Police Superintendent’s Discretion Scheme while he was in F2/3.  He was arrested for a rape case in 2019 which was subsequently dropped after the police investigation.  He committed the present offences in January and March, 2020.

112.  D4 told the probation officer that he decides to change himself and treats his life seriously.  This is also what he said in his own letter to this Court.

113.  His brother and sister said that D4 stays away from his dubious friends and now stays at home most of the time.  He demonstrates with great effort in study which earned him the headmaster scholarship of the year 2021 together with 2 awards for English subject.

114.  His sister found D4 has changed a lot and improved a great deal. He used to be rude to his mother.  It must be particularly hard and helpless for his mother.  Clearly his mother has no control over him.  In his letter to this Court, D4 said that he determines to graduate from the University, be a valuable person and to contribute back to the society.  He wants to make his mother proud of his success.  I hope that he also improves his attitude to his mother.

115.  The probation officer is of the view that with a CSO order can allow D4 to pursue his study at the University.  It is important for D4 as he is a young person with a long journey ahead of him.

116.  Technically, D4 has a clear record at the time of the offence.  The offence occurred when D4 was under the influence of bad peers.  He demonstrated his remorse by early guilty plea and cooperation with the police.  

117.  The probation officer report is overall positive and most important of all, D4 has shown efforts to reform himself and proved to everyone by taking positive steps to improve himself, bearing in mind he comes from a single parent family. His support from his family is very little.

118.  This determination to change comes from himself.  This is his own efforts to reform by returning to education.  I consider this as a strong mitigating factor.  I am persuaded that this determination to improve is sincere and he is encouraged to keep on improving.

119.  In the case of HKSAR v Chow Chak Man and another CACC 447/1998, the Court of Appeal said that:-

“if offences were serious, a community services order could be imposed if there were exceptional circumstances.”

120.  In HKSAR v Choi Ka Hon and another DCCC 1132/2010, D1 and D2 committed a domestic burglary when PW2 told D1 that their family would be out of town for a couple of days.  D1 and D2 used this information to burgle PW2’s premises with a total value of about $10,500 gone missing.

(i)  The very day the probation order was imposed on D1 for an offence of possession of cocaine, he was arrested for the offence of burglary.

(ii)  The probation order has operated successfully on D1 and he changed his ways completely. He became a prefect, played for the school’s football team, and joined an English prose reading course. The school teachers gave positive comments and said that D1 had totally reformed himself. He remained drug free.

(iii)  A 200 hours of CSO order was imposed on D1.

121.  I am told that D4 is willing to perform the CSO order.  He understands the importance not to default any appointment.  He would be re-sentenced again if his performance is not come up to standard or to the requirement of the probation officer.

122.  With all the information in mind, and weighting the interest of allowing D4 to continue his studies in the university, I am prepared to accept the recommendation by the probation officer and to give D4 an opportunity by imposing a 200 hours community service order for both charges. They are ordered to run concurrently.

D5

123.  As to D5, the most serious charges that he faced was charge 1 as it involved D1 and D4.  This is an aggravating factor.  I accepted that the offence was committed without planning or premeditation.  There was no violence or tools involved.  The total loss of the 21 bottles of perfumes was about $21,000.  Some bottles were found in D1 and D3’s home.

124.  He further committed charge 3 with D1 and D3. On this occasion, it was an opportunistic burglary as the backdoor of the supermarket was unlocked.

125.  He was 17 at the time of the offence.

126.  As discussed previously, according to S.109A(1)  of the Criminal Procedure Ordinance, I am obliged to call for report before sentencing.  However, D5 committed a more serious offence while he was on bail.  This is the robbery charge in DCCC 39/2021.  I convicted him in July 2021.  Robbery is an excepted offence and S.109A(1)  does not apply.

Charge 1

127.  As to charge 1 in DCCC 782/2020, I impose a sentence of 30 months. I enhanced the sentence by another 3 months because of the aggravating factor that it was committed together with D1 and D4.  It arrived at 33 months and reduced to 22 months after 1/3 discount.

Charge 3

128.  As to charge 3 in DCCC 782/2020 which was committed with D1 and D3 while he was on police bail of charge 1, I adopted a starting point of 15 months enhanced by 3 months, it arrives at 18 months.  Given the 1/3 discount, it arrives at 12 months.

Totality

129.  4 months from charge 3 be ordered to run consecutively to charge 1.

130.  D5 is ordered to serve a total sentence of 26 months for charges 1 and 3.

DCCC 39/2021

131.  As counsel in the robbery case DCCC 39/2021 accepted that starting point for arm robbery was 5 years.  Mo Kwong-sang v the Queen CACC 359/1981 refers.

132.  In HKSAR v Ting Chiu and other [2003] 3 HKLRD 378, the court of appeal stated that for an unarmed robbery, the starting point should be lower.  When there is more than one culprit, the Court said that it was an aggravating factor because the threat and pressure exerted by a number of robbers on the victim was obviously more serious than those exerted by a lone robber.

133.  In the present case, it was a well-planned robbery.  There was a man called Kernel to orchestra the plan of robbery.

134.  Apart from D3, there was another 2 wanted persons.  D1 was recruited by D2.

135.  There was a picture of PW1 who was targeted by the group to rob his watch.

136.  The watch worth $1.4 million.  It was still unrecovered.

137.  PW1 was the owner of a watch company situated on street level of Granville road.  It opens between 11 am to 7 pm.

138.  That means the group knew when and where to wait for PW1 as the robbery took place at around 7:30 pm.

139.  Four persons were designated to attack and empower PW1 during the robbery.  At the end, WP2 pulled out and there were still D1, D2 and WP1 to carry out the attack on PW1.

140.  The victim was being kicked and punched by 3 robbers for about 20 seconds.  I noted that there was no weapon used during the robbery.

141.  Each of them had a role to play:-

a. D3 lead the group, D1, D2 and 2 wanted persons to the scene at about 5:30 pm.

b. D1, D2 and the other persons were instructed to “get PW1 down.”

c. The original plan was D2 to get the watch. It turned out D1 to get the watch during the attack.

d. The watch was eventually passed on to a Pakistani who went away and returned to give them with the following rewards:-

i. D1 and D2 each got $5,000.

ii. D3 got $1,000.

142.  Therefore, there were at least 7 persons in this plan to rob PW1, namely, D1, D2, D3, 2 wanted person, Kernel and the Pakistani.

143.  There might be some more people behind the scene as the 3 defendants all said that the Pakistani left with the watch and returned with money to distribute to D1, D2, and D3.

144.  D1 and D2 both wore 2 sets of clothes to execute the plan of robbery. When they finished the job, they took off their top layer and threw the clothes away.

145.  This was a calculated move, planned in advance for getting away in order to cover up their true identity.

146.  It was fortunate that PW1 did not suffer any serious injury.  He was discharged from the hospital on the same day.

147.  In general, I accepted that D1, D2 and D3 made full confession to the police when they were arrested and all the defendants’ early plea to the offence of robbery.

148.  D3’s counsel emphasized that D3’s role was a lookout and he left before the commission of the offence.  However, he was part of the same scheme to execute the plan of robbery.  He acted in concert with D1, D2 and the others. He took D1, D2 and the others to the scene.  I do not see any reason why he should be treated differently.

149.  As to D1 and D2, they both have committed burglary offences in January and March 2020.  As said by the Court of Appeal in HKSAR v Shum Ming and others [1978] HKLR 41(CA)  that:-

“Persons who appear before the court for the first time, but who appear charged with multiple offences, particularly of the same type, cannot be regarded as first offenders.”

150.  Applying the same reasoning in the present case, D1 and D2 cannot be regarded as having clear record.

151.  Moreover, they committed the Robbery offence (23.7.2020)  during the high court bail (4.7.2020)  for D1 and police bail (31.1.2020)  for D2. It is an aggravating factor.  It also showed that they have no remorse for their past misdeeds.

152.  In view of the relevant factors I set out and taking into of all the mitigating factors put forward on all the defendant’s behalf, I find a 4 years starting point is appropriate.  I enhanced another 3 months against D1 and D2 for the aggravating factor.

153.  D1 and D2’s sentence is 4 years and 3 months, reduced to 34 months after 1/3 discount.

154.  D3’s sentence is 4 years and reduced to 32 months after 1/3 discount.

155.  Regarding D1 and D2, as they were D2 and D5 respectively from DCCC 782/2020, I ordered D1’s sentence as he was D2 from DCCC 782/2020, namely 6 months out of the total of 16 months be run consecutively to DCCC 39/2021.

156.  I also ordered D5’s sentence from DCCC 782/2020, namely 9 months from 26 months to be served consecutively to DCCC 39/2021.

157.  The total sentence for both DCCC 782/2020 and DCCC 39/2021 for D1 is now 40 months.

158.  The total sentence for both DCCC 782/2020 and DCCC 39/2021 for D2 (D5)  is now 43months. I further exercise my discretion to reduce one more month as an act of mercy for the loss of his mother while he was remand. D2 (D5)  is to serve a sentence of 42 months.