HKSAR v. YIP CHI HO AND ANOTHER

DCCC1355/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1355 OF 2010

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Reasons for Sentence

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1.  The Defendants pleaded guilty to one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210, laid jointly against them.

2.  The Summary of Facts which the Defendants admitted disclosed that around mid-night on 1 November 2010, they robbed their female victim of her handbag which contained various items including a camera, an Octopus card, a bank ATM card, and cash of about HK$230. The victim was aged 19. She was walking alone and was heading back home at the time. The 1st Defendant and the 2nd Defendant approached the girl from behind. The 2nd Defendant held the girl at her neck while the 1st Defendant snatched her handbag. The Defendants then fled in different directions. The girl gave chase but to no avail. A report was then made to the police.

3.  Shortly afterwards, the 1st Defendant was arrested and most of the stolen items, including the cash, the camera, and the bank card, were retrieved from his bag while the other items had been discarded by him earlier on. Under caution, the 1st Defendant admitted that he had committed the offence as he had no money. He also admitted that it was him who suggested to the 2nd Defendant to commit the robbery. Later, the 1st Defendant led the police to recover the discarded items.

4.  A few days later, the 2nd Defendant was also arrested. Under caution, he, too, admitted that he had committed the robbery together with the 1st Defendant as he had no money. The 2nd Defendant further admitted that it was him who held the victim’s neck at the time.

5.  The 1st Defendant is now aged 20 and the 2nd Defendant is aged 18. Both have a clear record. They are neighbours who live in the same housing estate. Prior to their arrest, the 1st Defendant worked as a delivery worker, earning about HK$6,500 per month and he contributed some of his income to his family. The 2nd Defendant worked as a cleaner, earning about HK$4,000 per month whereas both of his parents have ceased employment and are relying on public assistance.

6.  In mitigation, Mr. Tang said that both Defendants are remorseful and are determined to turn over a new leaf. They feel sorry for what they have done. They committed the offence because both of their birthdays are in October. The two Defendants had therefore used all their earnings in that month for celebration. On the day in question, they were walking in the street and they noticed the victim walking alone. Out of greed, they then decided to rob the girl of her handbag. The robbery was not a pre-planned one and they did not use any weapon at the time.

7.  Although the offence of robbery to which these two Defendants pleaded guilty is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221, and that section 109A is not applicable, a sentencing court would still consider how best it is to deal with these young Defendants, given the nature and circumstances of the offence, the interest of the community, and the offenders’ background, etc. In view of the Defendants’ relatively young age, I have adjourned sentence to today in order to obtain a background report and a Training Centre report on each of them.

8.  These reports I now have. It was said that after quitting school and without completing his Form 4 in November 2007, the 1st Defendant then started working but had an unstable working pattern. He quitted his job in October 2010 and then became jobless. His wayward life began in 2007 when he mingled with some triad members, engaging in “settlement talks” and gang fights. In late 2007, he started taking ketamine upon their persuasion. The 1st Defendant’s parents were said to be unable to offer him sufficient and effective parental supervision during his upbringing.

9.  The officer compiling the report observed that during the interview, the 1st Defendant was polite and frank. He showed remorse and he regretted what he had done. As to his future, it was reported that the 1st Defendant would like to acquire some useful skills through training and he is determined to start afresh. The report also indicated that the 1st Defendant’s mother is supportive and would help him get back onto the right track.

10.  The report on the 2nd Defendant revealed that he has some learning difficulties and his academic performance had all along been unsatisfactory. He quitted school after completing Form 4. He then attended a short-term vocational training course. In late 2009, the 2nd Defendant got acquainted with some undesirable peers and in October 2010, he got to know some triad members and was asked to join them. The 2nd Defendant started work in January 2010 and he had taken up various odd jobs. He had been unemployed for about half a year before being arrested. Although the 2nd Defendant maintained a harmonious relationship with his family members, parental guidance, it was said, was ineffective and insufficient.

11.  During his interview with the officer, the 2nd Defendant was found to be polite and sincere. He expressed his remorse towards what he had done and expressed regret for having let his parents down. It was further reported that the 2nd Defendant is determined to turn over a new leaf and to get himself a stable job in order to help solving the financial difficulties of his family. The 2nd Defendant’s mother was interviewed and she was noted to have a fully supportive attitude with respect to the 2nd Defendant’s reformation.

12.  The present case is a case of unarmed robbery. I note that the case of HKSAR v Ting Chiu & Anor [2003] 3 HKLRD 378 is often referred to in the sentencing for unarmed robberies. However, in HKSAR v Tsang Wai Man, CACC 288/2006, unreported, the Court of Appeal observed that Ting Chiu’s case was not a guideline case for the sentencing of unarmed robbers in terms of the length of sentence to be imposed and that every case must be determined on its own facts.

13.  I am also aware that in Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal examined the circumstances under which a training centre order is to be imposed and what the relevant considerations are.

14.  In the present case, if a prison sentence were to be imposed, I would consider a starting point of 4 years to be appropriate given the facts disclosed, including that there were the two of them committing the robbery together; that they targeted a lone female victim and that one of them held her neck at the time.

15.  No doubt, robbery is a serious offence and an immediate custodial sentence is generally called for. If not because of the age and background of the Defendants, I would have no hesitation in imposing a term of imprisonment. In fact, this morning, Mr. Tang informed the court that both Defendants would not mind being sent to the prison, probably because they have gathered the thought from others that the time they would have to spend in prison would be shorter than in a Training Centre. This does not only show the immaturity on the part of both Defendants, but also that both are susceptible to influence.

16.  On the information available, I have no doubt that both the 1st Defendant and the 2nd Defendant are easily influenced by others and they lack the ability to resist temptation and to observe discipline. That resulted in them committing the present offence. If they were to be left on their own, there is a high likelihood that they would mingle with their dubious peers again and go down a track which has no return. Such is evident from the fact that both got themselves involved in triad dealings when they hanged around in parks and amusement games centres while they had no work to do and when they were trying to kill time.

17.  In the interest of the community and for crime prevention, it is better that while it might still be possible to guide the Defendants back and to have them turned into useful members of the community that this chance be seized and acted upon. I agree with the reporting officers that a period of disciplinary training coupled with statutory supervision is beneficial to them. Such training and supervision would not be available if a term of imprisonment were to be imposed.

18.  After careful consideration, I take the view that a training centre order is the most appropriate method to deal with both the 1st Defendant and the 2nd Defendant and I make such an order in respect of the robbery offence to which they pleaded guilty.