HKSAR v. CHAN TSZ-WANG AND OTHERS

HCCC 244/2020

[2021] HKCFI 1067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 244 OF 2020

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REASONS FOR SENTENCE

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REASONS FOR SENTENCE

1.  The defendants pleaded guilty before a Magistrate and was committed on 12 October 2020 to the Court of First Instance for sentence.

2.  The defendants jointly face two counts of robbery[1] (counts 1 and 3) and one count of attempted robbery (count 2).

SUMMARY OF FACTS

Count 1

3.  At about 2:21 am on 2 March 2020, D1 and D2 entered the 7-Eleven Convenience Store at Shop G09 and 10 of Prime View Garden Shopping Centre in Tuen Mun.  They each wore a cap, hoodie jacket and surgical mask.

4.  There were two staff members and no customers inside the store. D1 told one of the staff to squat while D2 pointed a 35 to 40 cm long beef knife at the other staff member, Mr So, and declared robbery.

5.  Mr So was told to take all the money from the two cash registers and he complied.  D1 and D2 took $1,500 and left.

6.  D3 stayed in a taxi to act as look out while D1 and D2 committed the robbery.

Count 2

7.  About 45 minutes later, D1 and D3 entered the Circle K Convenience Store at Shop A,  Kit Man House in Yuen Long.  They were each wearing a surgical mask and asked for cigarettes.  When Ms Wu, the staff member who was alone in the store turned to get the cigarettes, she heard someone declared robbery.  She turned around and saw D3 pointing a 30 cm long beef knife at her.  Ms Wu was scared and shouted for help, whereupon D1 and D3 left without taking anything.

8.  D2 was responsible for engaging a taxi while D1 and D3 committed that attempted robbery.

Count 3

9.  About 95 minutes later, at 4:40 am on 2 March 2020, D1, D2 and D3 entered the 7-Eleven Convenience Store at G/F, Man Cheong Building in Yuen Long.  They were each wearing a surgical mask.  Upon entry, D3 declared robbery and brandished a 20 cm long knife and pointed it at the neck of the staff member, Mr Mok.

10.  Mr Mok opened the two cash registers.  The three defendants took a total of $9,423 and asked Mr Mok if he had his wallet and phone with him.  They left when he said he did not.

11.  D1 and D2 were arrested three days later on 5 March 2020, while D3 was arrested on 6 March 2020.

12.  D1 brought the Police to the drainage of Tai Shu Ha Road East where some of the clothing that they wore in the robberies had been disposed of.

13.  D2 said under caution that a “Fei Ngau” owed people a lot of money and forced him and “Ah Wun” to commit the robberies.

14.  D3 said under caution that he committed the offences with two friends because he needed money.  He, “Fat Tsai Wun” and “Tommy Tsai” robbed the 7-Elevens and divided the proceeds at his home afterwards.  D3 had disposed of the clothes that he was wearing.  He led the Police to the place where he threw the clothes and the beef knife away.

15.  In the subsequent video recorded interviews, all three defendants confessed to committing the three offences.

PREVIOUS CONVICTIONS

16.  D1 and D2 are both of previously clear record.

17.  D3 was first convicted of five charges of common assault in two different cases in 2017 when he was 14 years old.  He was sentenced to probation.  He was, however, in breach of the probation orders and was brought back to court, where the magistrate extended the duration of the orders.  D3 was next convicted in July 2020 for two charges of blackmail when he was 17.  He was ordered to be detained in the Drug Addiction Treatment Centre with conviction recorded.

MITIGATION

D1

18.  D1 was born on 7 October 2004 and is now 16 years and 5 months old.  He lives with his father and 9-year-old sister.  Their mother suffered from depression and committed suicide in 2018 by jumping from height after a heated argument with her father.  The defendant’s father has since been looking after the children.  He is in the decoration business, earning a few ten thousand dollars per month.

19.  D1 was educated up to Form 3 level and left school at the end of 2019.  He had since been working with his father, with no fixed income.

20.  Counsel for D1 pointed out that D1 did not himself hold the knife used in the three offences, that D1 is not the oldest among the three defendants, that both D1 and D2 are saying that they had been instructed to act by D3, and that D1 had cooperated with the police, bringing them to where their clothes had been disposed of.  He also states that D1 is willing to compensate the victims.

21.  Counsel submits that given the age of D1, the most appropriate sentence is that of detention in a training centre, pursuant to section 4 of the Training Centres Ordinance, Cap 280.

22.  It must be pointed out that the offence of robbery is an excepted offence within Schedule 3 of the Criminal Procedure Ordinance and as such imprisonment need not be the last resort in sentencing someone under 21.

23.  In relation to the case of HKSAR v Lam Hoi CACC 105/2016 referred to by the prosecution, D1’s counsel submits that that case can be distinguished for the following reasons.

24.  Although Lam Hoi also involved robbery of three convenience stores, counsel says they happened on three consecutive nights. The weapons in Lam Hoi were not just brandished, but pointed at the victim’s tummy or head.  One of the defendants in Lam Hoi threatened the victim by saying, “Don’t you believe that I will stab you?”.  After the robbery, the defendants returned to the same store and further threatened the people there.

25.  Counsel for D1 submits that the overall notional starting point in the present case should be lower than the seven and a half years in Lam Hoi.

26.  D1 refers to the case of R v Cheung Wing-wai and others [1993] 2 HKCLR 139 where the Court of Appeal said that unless for very serious cases, when dealing with young offenders, detention in a training centre should be one of the sentencing considerations, as it is not purely rehabilitative, but one with an element of deterrence and punishment too.

D2’s mitigation

27.  D2 was born on 20 March 2005.  He was 14 at the time of the offences, and is now 16 years old.  D2’s parents divorced about nine years ago.  D2 lives with his mother in a public housing estate in Tuen Mun.  He had not seen his father for a few years.

28.  D2’s mother works as a care assistant in an old folks’ home, earning around $15,000 per month.

29.  D2 was a Form 2 student at the time of arrest.  While not doing well academically, he is quite a keen sportsman, as evidenced by the awards shown to the court.

30.  Counsel informed the court that D2 turned wayward after his promotion to secondary school due to the influence of undesirable company.  He also lacked parental supervision.

31.  Mr Wong submits that the defendant has shown genuine remorse in his early plea and in the contents of his letter to the court.  Mr Wong suggested that the defendant is not a bad person in nature and that with proper guidance, it is possible that he will be able to return to the right path. Mr Wong also points out that the defendant was very young when he committed the offences, that he was of clear record and that he is willing to compensate the victims in full together with the other two defendants, with his share coming up to $3,641.

32.  As for sentencing authorities, Mr Wong refers to the leading authority of Mo Kwong-sang v R [1981] 1 HKLR 610.  It is his submissions that, when read together with the case of HKSAR v Lam Hoi[2] referred to above, a total of over five years’ imprisonment for the three offences after plea is warranted in this case of armed robbery.

33.  It is, however, Mr Wong’s submission that in view of D2’s young age and his lack of  any previous conviction, a training centre order should be considered and a suitability report should be called for before sentencing.

D3

34.  D3 was born in on 1 October 2002 and was 17 at the time of the offences.  He is now 18 years and 6 months old.  He was residing with his parents and elder sister prior to his present remand.  Counsel Ms See informed the court that D3’s mother thinks she had spoiled the defendant and had been over-protective of him.  The defendant is however kind at heart and helpful with household work.  D3’s father is in poor health and needed the defendant to help looking after him.

35.  The defendant’s step-brother said that D3 suffers from dyslexia and had been looked down on by fellow classmates since they could not understand his condition.  This condition also explains D3’s poor academic results.  It was the step-brother who used to help out D3 with his school work.  The step-brother admits that he himself had difficulty understanding D3’s dyslexia and hence had given D3 a lot of pressure.  They still have a good relationship but he finds that the defendant had avoided seeing him by staying away from home.  He feels that he and his mother are responsible for the defendant’s commission of the offences and asks for leniency.

36.  Ms See pointed out that D3 had been cooperative with the Police, locating the discarded knife used in the commission of the offences, and making full admissions in the video recorded interviews.  The defendant’s social workers had written in mitigation, suggesting that he is remorseful and has gained insight into his behavior.

SENTENCE

37.  The maximum sentence on conviction upon indictment for robbery and attempted robbery is that of life imprisonment.

38.  Robbery and attempted robbery are excepted offences in Schedule 3 of the Criminal Procedure Ordinance, Cap 221, as such s109A of the same Ordinance does not apply and imprisonment of a young person need not be the last sentencing option.

39.  Having said that, given the age and background of the defendants, I found it prudent to call for Training Centre and probation reports on them prior to sentencing.

THE REPORTS

D1

40.  In his probation report, Probation Officer Mr Cheung stated that the defendant had shown remorse and was cooperative during his enquiry. He recommends the defendant to receive residential training at Christian New Being Fellowship for 18 months, with the added conditions that he shall study or work and reside as directed, and to observe a curfew order from 9pm to 6am, and to abstain from dangerous drugs.

41.  It is Mr Cheung’s view the residential training would allow D1 to tackle his drug problem and cut his linkage with the undesirable peers.

42.  It is D1’s plan to resume schooling and then find a stable full time job after the training period.

43.  D1’s father was shocked when he found out what D1 had done. He was not aware of D1’s drug usage. Since the suicide of his wife, the father had been working long hours and was unable to provide close supervision to the defendant.  He did notice that D1 became rebellious after his promotion to Form 3 and his mixing with dubious peers.  He promised the probation officer that he will keep a closer eye on D1 in future.

44.  According to his Training Centre report, D1 started working as a part-time decorator with his father in December 2019, earning about $500 per day.  He continued in this work until being remanded for the present case.

45.  Officer Ka of the Rehabilitation Unit finds the defendant carefree in attitude in the interview.  D1 impressed him as a loose youngster. D1 claimed that it was D2 and D3 who invited to commit the robberies to get quick money, and he agreed to do so out of greediness and weak law-abiding concept.

46.  In the interview with D1’s father, he told Officer Ka that he finds the defendant easily influenced by his peers and that the death of his wife had a negative impact on D1.

47.  In conclusion, Officer Ka finds that D1 is mentally and physically fit for detention in a Training Centre, and that after a general assessment of D1’s behavior and attitude whilst on remand, he considers him suitable to be so detained.

D2

48.  D2 was born in the third marriage of her mother in Hong Kong. The relationship between his parents deteriorated after D2’s birth.  D2’s father did not work and did not contribute to the family, staying away from home frequently.

49.  D2 and his mother started to rely on CSSA in 2006.  The marriage ended in 2011.  D2 and his mother moved to a new address and had had no contact with the father until the present case.  D2’s father resumed contact and visited him.

50.  D2’s mother returned to work when he attended Primary 4.  With the longer working hours, she was not able to provide adequate care and attention to D2 in his early teens.  D2 was not particularly strong academically, but he excelled in sports.

51.  Since Form 1, D2 mixed with dubious peers and started to smoke, skipped school and stayed out late.  The situation got worse when he was in Form 2, which led to his dropping out of school after the first term of him repeating Form 2.

52.  D2 committed the offence for quick money.  He claimed that it was D3 who initiated the robbery.  D2 understands the different sentencing options and prefers the strict supervision and monitoring of the Training Centre.

53.  It is the Probation Officer’s opinion that D2 would benefit from remanding in the Training Centre while his chance for successful rehabilitation under probation is not optimistic.  Probation is not recommended.

54.  Officer Tung of the Rehabilitation Unit of Pik Uk Correctional Institution reported that the defendant has been found to be mentally and physically fit for detention in a Training Centre, and he considers D2 suitable for such detention having assessed his behaviour and attitude, so that he may undergo a period of comprehensive educational and vocational training coupled with statutory aftercare supervision.

D3

55.  D3 began his primary school education in 2008.  Due to his behavioural problem, he was arranged to receive training at a school for those with learning disabilities, emotional and behavioral problems.  He completed his primary education at a local school in 2015.  He enrolled into another local school for his secondary schooling.  He did not complete Form 2 and quit school in July 2018.  He later enrolled in a full time course of Diploma of Vocational Education (Business) organized by Youth College in September 2018.  He quit the course two months later.

56.  He worked as a waiter and part-time kitchen helper in a Chinese restaurant.  He quit his job at around the same time he quit the vocational course, and had been working as a logistic worker occasionally, earning an unstable income until his present remand.

57.  D3 suffers from G6PD deficiency and was assessed to have ADHD when he was in Primary 3.  He had received psychiatric consultations and medication until late 2018.  He was also found to suffer from dyslexia when he was in Primary 1.  As a result, D3’s academic performance has all along been poor.

58.  According to the probation officer, D3 had poor drug compliance and had failed to keep his last psychiatric appointment on 15 November 2018, being a few months before his commission of the offences in the present case.

59.  D3 admitted that he had performed badly when he was under probation supervision before.  He had relapsed into his loose living style after his discharge from the juvenile home, re-establishing contact with his triad friends.  D3 frankly admitted that his drug habit caused him to be in debt and they led to his commission of the various offences.

60.  It is the probation officer’s observation that D3 did not benefit from being kept at places aimed at his social development.  D3’s behaviour got worse after his release from the juvenile home on the previous occasion and after he was free from statutory supervision.  His mother and sister are unable to effectively supervise or control D3.  The officer finds that D3 is still being affected by the values instilled in him through his association with triads, still dreaming to set up his own business with quick money earned from illegal acts without the intention to mend his path or keep away from dangerous drugs. D3 refuses to consider rehabilitation programmes and simply asked for a short sentence.  Probation supervision is not recommended.

61.  In relation to the Training Centre report, it is the opinion of Officer Kwong that, despite the fact that D3 had repeatedly breached institutional rules while being remanded for the preparation of reports, a period of more comprehensive training programme followed by a longer period of statutory supervision would definitely be beneficial to D3’s rehabilitation, and he considers D3 suitable for detention in a Training Centre.

THE PSYCHOLOGIST REPORT

62.  In view of the psychological condition of D3, I ordered that a psychologist report to be prepared on D3.

63.  Clinical Psychologist Dr Hung gave a detailed account of D3’s history of behavioral disturbances and offending, supplementing the Training Centre and Probation reports.  In relation to the present case, D3 told Dr Hung that his triad brother had been arrested causing D3 to have no cocaine to consume that evening.  So he committed the offences to try to get some quick money to support his addiction and relieve the withdrawal symptoms.  There were three documented physical conflicts between D3 and fellow inmates in the correctional institutions since his admission in 2020, with the most recent one taking place in end of February 2021.

64.  Dr Hung conducted assessments with D3 and found that he is of normal intelligence and is able to tell right from wrong.  The assessment revealed “elevation in anger and aggressiveness, anti-social tendencies, addiction issues, amorality and low self-esteem.”

65.  It is Dr Hung’s finding that D3 is presented with multiple psychosocial risk factors predicting delinquency and repeat offending.  D3 has chronic failures in relating with others and would resort to physical violence when he was angry.  His psychosocial functioning had been negatively affected by his history of multiple drug abuse.  There are signs of drug dependence, mental instability caused by drug use and his impulsiveness is exacerbated by the effects the drugs have had on his brain.

66.  Dr Hung’s opinion is that D3 currently manifests personality characteristics warranting the diagnosis of Antisocial Personality Disorder and that he has a high risk of general and violent re-offending.  Dr Hung recommends intensive and early rehabilitation intervention as being necessary for D3 to go back on the right path.

SENTENCING

67.  It is not disputed that the sentencing guidelines laid down in the case of Mo Kwong Sang v R [1981] HKLR 610 in relation to armed robbery is applicable.

68.  In the case of HKSAR v Wong Tsz Hin CACC 38/2012, the applicant was a 16-year-old boy who pleaded guilty to two charges of robbery in the District Court.  He came to know the two victims, who were both 14, through an online game platform.  The applicant tricked one of the victims to meet by pretending to be a girl.  The applicant held a knife and pushed the victim into a cubicle inside a public toilet at their meeting place and declared robbery.  $300 cash, US$1 and a mobile phone was taken by the applicant from the victim before he fled.

69.  11 days later, the applicant repeated the trick with a different victim, again telling him to meet at a public toilet.  While the victim waited, the applicant appeared with a white facemask.  He told the victim that he needed to go into the toilet and asked him to hold his backpack. After they entered the toilet, the applicant pushed the victim into a cubicle, took out a knife from the backpack and threatened the victim, asking him if he had any money and phone.  The victim handed over his phone and $1,600 in cash.

70.  The applicant was arrested after a few weeks.  Under caution, he said he had used his ex-girlfriend’s account to register for an online game and came to know the victims using that account. “He used the fake identity to communicate with the victims and felt that they had “sinful thoughts” about the fake identity and so he was angry and used a knife to rob them.  He acted alone and used the recorded voice of his ex-girlfriend to communicate with the victims.

71.  The applicant was a 16-year-old student with a clear record.  The sentencing judge referred to the case of Mo Kwong Sang and adopted a starting point of six years’ imprisonment for each of the two offences.  The judge did not call for reports because he was of the view that the gravity of the crime dictated that the only possible sentence was that of imprisonment.  A sentence of four years and two months’ imprisonment after plea was passed.

72.  On appeal, the Court referred to the case of R v Cheung Wing-wai and others [1993] 2 HKCLR 139, where the Court of Appeal expressly approved Training Centre Orders for two defendants (aged 16 and 17 respectively) who had pleaded guilty to serious charges of robbery and handling stolen goods.  There the defendants targeted the Manning Store in Repulse Bay and the Wellcome Supermarket in Nathan Road and in each case, staff and customers were threatened with large knives and were gagged and tied.  Senior staff were forced at knife point to open safes from which considerable sums of money were taken.  Staff and customers also had their valuable and documents of identity taken from them.

73.  The Court remarked that, while there the two defendants were under the influence of two more mature men who were ex-police officers, the offences they committed were much more serious than those committed by the applicant.

74.  The Court found that, “in view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.”  They ruled that the judge was wrong to have ruled out the option of a Training Centre Order or a Detention Centre Order.  Having heard reports, a Training Centre Order was made in respect of the two charges.

75.  It is with these two cases in mind that I ordered a Training Centre and a Probation Officer’s report to be prepared on each of the three defendants in the present case.

76.  Having had the benefit of the reports prepared on D1 and D2, I find that I have come to the same conclusion as the Court of Appeal did in the case of Wong Tsz Hin.

D1 and D2

77.  In the case of D1 and D2, they are both of previously clear record and are both of very young age at 16 and 16 and 5 months old.  They were both under the influence of a slightly older person in D3.

78.  I find that it would be in the best interest of society as well as D1 and D2 that they be dealt with by way of detention in a Training Centre.  D1 and D2 are each sentenced to three concurrent sentences of detention in a Training Centre.  They are below 21 at the time of sentencing.

D3

79.  Sentencing D3 is a much more difficult exercise.

80.  On the one hand, this is not his first conviction and he is not as young as the other two defendants.  D3 did not make good use of the chances that the court had given him on the previous occasions.  The sentences had failed to deter him from going down the path of crime.  Perhaps this is the point when the court must impose a sufficiently heavy sentence to try to shock him into understanding that unless he mends his way, there is no future in his chosen way of life.

81.  On the other hand, D3 had been dealt an unfortunate hand since birth.  He is dyslexic and suffers from ADHD.  In the highly competitive and relatively inflexible education system in Hong Kong, this combination of disabilities ensured that D3 would not be able to enjoy the process of being educated as the person that he is.  His failure in school was more or less guaranteed.

82.  Being unsuccessful in school would have led to low self-esteem in D3, as observed by Dr Hung in the psychologist report.  As mentioned by his mother, D3 had no friends and was teased at school.  Unsurprisingly, D3 was only able to find companionship and acceptance through ‘dubious peers’ and later on in triad members.  D3 suddenly found that as long as he held the law and authorities in disregard, he was being admired, respected by those peers.  As Officer Kwong observed, D3 still believes that he could use ill-gotten money to start his own business.

83.  Now that the problems of D3 are much clearer, that is to say, his drug abuse and his diagnosis of Antisocial Personality Disorder have been identified, D3 may be in a better position to tackle them.

84.  During detention, D3 will not be able to have access to illicit drugs and once his drug addiction has been dealt with, his Personality Disorder could also be treated and hopefully lowering the risk of his re-offending, thus benefiting the community.

85.  Perhaps if D3 is given the right attention and treatment and his Disorder is brought under control, he may be able to make better decisions and ultimately be able to stay out of trouble.

86.  As suggested by Officer Kwong in the Training Centre report, it is his professional opinion that a period of detention in the Training Centre may still be useful for D3’s rehabilitation.

87.  After careful consideration, for each of the offences D3 has been convicted of, he is sentenced to detention in a Training Centre, to be served concurrently.  He is below the age of 21 at the time of sentence.