A A
DCCC1338/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1338 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Leung Man-fung (D1)
F Law Nang Yiu (D3) F
Wan Chi-leung (D4)
G G
----------------------
H Before: H H Judge Tallentire H
Date: 7 June 2011 at 10.05 am
Present: Mr Bobby Cheung Man-kwan, PP, of the Department of
I Justice, for HKSAR I
Ms Yu Mei-lin Catherine, of C Yu & Co., for the 1st
J defendant J
Mr Paul Wu, instructed by Idy Chiu & Co., assigned by
the Director of Legal Aid, for the 3rd Defendant
K Mr Cheung Kin-bor Michael, instructed by S H Leung & K
Co., assigned by the Director of Legal Aid, for the
4th Defendant
L L
Offence: (1) Theft (盜竊罪)
(2) Robbery (搶劫罪)
M (3) Possession of an offensive weapon in a public M
place (在公眾地方管有攻擊性武器)
N N
---------------------
O Reasons for Sentence O
---------------------
P P
Q 1. D1, you have pleaded guilty to one offence of theft Q
and one offence of robbery. D4, you were convicted of one
R offence of theft. D3, you were convicted of one offence of R
possession of an offensive weapon that is contrary to section
S 33(1) of the Public Order Ordinance, Cap. 245. S
T T
2. In my verdict, I dealt fully with the facts and I do
not need or intend to repeat those facts. They are well known to
U U
everyone.
CRT31/07.6.2011/GTT 1 DCCC1338/2010/Sentence
V V
A A
3. D1, you are a man of hitherto clear record as is D3.
B B
However, D4, you have 7 previous convictions and are in fact
C currently serving a sentence of Drug Addiction Treatment Centre C
imposed subsequent to the commission of the offence of which you
D are convicted. D
E E
4. D1, in view of your relative youth and clear record, I
adjourned the case for the preparation of a probation officer’s
F F
background report, which is now before me.
G G
5. D3, you are 15 years of age - 14 at the time of the
H offence - and of clear record. Also, given the section and H
ordinance under which you are charged, I therefore adjourned the
I I
case for reports. As you are aware, no doubt, from Mr Wu, the
powers of this court are severely prescribed as to the sentence
J J
that can be imposed.
K K
6. D4, as I have said, you are presently serving a
L sentence of Drug Addiction Treatment Centre. I therefore sought L
a further DATC report to gauge your progress at that
M institution. M
N N
7. I can tell all the three of you that I have read the
reports presented to me and taken them fully into account when
O O
arriving at the sentences which I shall shortly impose.
P P
8. Mr Tse entered full mitigation on your behalf, D1, on
Q the last occasion. This has been supplemented today by Miss Yu. Q
I shall deal, first of all, with Mr Tse’s mitigation. He
R R
reminded me that you are 19 years of age and of clear record. He
produced a medical report which showed that in the past you had
S S
suffered from heart problems but now had effectively recovered,
T which is to be welcomed. T
U U
CRT31/07.6.2011/GTT 2 DCCC1338/2010/Sentence
V V
A A
9. He also produced and referred me to various letters of
support in mitigation from a District Council member, you
B B
yourself, your father and your mother. I have taken those
C letters fully into account when assessing the sentence. He also C
produced various certificates showing that you had undertaken
D charitable work in the field of fund-raising. D
E E
10. He submitted that the offences themselves were not
premeditated. You had been fully co-operative with the police
F F
and with the court, including the giving of evidence against
G others; that I should take this into account despite the G
outcome. He told me that even though the victim of the robbery
H had left Hong Kong, you had still decided to maintain a plea of H
guilty. These pleas of guilty, he submitted, were a clear
I I
demonstration of your remorse.
J J
11. Mr Wu also entered mitigation on behalf of his client.
K
He told me that you, D3, were but 14 years of age at the time of K
the offence and are now fifteen. You had been born on the
L mainland, coming to Hong Kong in 2003 where you received L
education. It was your intention to resume your studies after
M your release. Referring to your family, I am told that your M
father is retired and lives in the mainland, whilst you reside
N N
with your mother and one brother. You, your mother and brother
are in receipt of public assistance. You have three further
O O
sisters who reside apart.
P P
12. Mr Wu submitted that you had never used the folding
Q knife for any unlawful purpose, not even to scare others. He Q
asked for leniency.
R R
13. Mr Cheung entered mitigation on behalf of you, D4. The
S S
prime body of that mitigation was placed before me today, not on
T the last occasion. He referred me to the DATC report, which T
carried a positive recommendation for a further DATC order. He
U reminded me that you had been acquitted of the more serious U
CRT31/07.6.2011/GTT 3 DCCC1338/2010/Sentence
V V
A A
offence of robbery and only convicted of the theft, and that you
were not the ringleader in that offence. The two mobile phones
B B
had been recovered, although the SIM cards had not. He said it
C was your intention to commit no further offences and he urged me C
to let you continue to serve your sentence at DATC. The
D intention is that you will not be released until the end of this D
year.
E E
14. Mr Wu made further brief submissions. The thrust of
F F
those submissions was to persuade me to make a detention centre
G order rather than look at the more lengthy sentence of a G
training centre. I was able to indicate that I was in broad
H agreement with him on that. H
I I
15. Miss Yu, on your behalf, D1, went on to make further
submissions. She reiterated that neither of the offences that
J J
you pleaded guilty to were planned. She reminded me that you are
K
only 19 years of age and of clear record. She also placed two K
authorities before me: HKSAR v Lam Ka Hung, Cr App 294 of 2003,
L and HKSAR v Ting Chiu & Anor, Cr App 174 of 2003. They involved L
non-armed robberies. The court had approved a starting point of
M 4 years’ imprisonment in those cases, though she asked me to M
take the view that this was a less serious robbery than those
N N
and I should take a lower starting point. She reminded me that
you were but 19 years of age and you had given evidence for the
O O
prosecution.
P P
16. I turn now to the sentences. D1, you are relatively
Q youthful, being only 19, and you are of clear record and have Q
pleaded guilty. You did give evidence as a prosecution witness,
R R
but I have to say that in general I disbelieved and rejected
that evidence. However, having said that, the robbery itself has
S S
to be viewed as at the very bottom of the scale. No weapon was
T used. There was mercifully no injury to the victim. The victim, T
whilst obviously very distressed, was generally not put in fear
U to a great extent. I accept that you have pleaded guilty even U
CRT31/07.6.2011/GTT 4 DCCC1338/2010/Sentence
V V
A A
though the victim has left the territory and I also view it as a
spontaneous act. All goods taken were recovered.
B B
C 17. Of course, the first offence in time was that of theft C
from the drunken person. Again, this would appear to be
D spontaneous. The person was never put in fear and all goods have D
been recovered apart from the SIM cards for the phone.
E E
18. I do view you, D1, as the ringleader, certainly in
F F
respect of the robbery and also in respect of the theft. You
G were clearly the prime mover. G
H 19. Taking Charge 1 first of all, I take as a starting H
point 15 months’ imprisonment reduced to 10 months for your plea
I I
of guilty. Charge 2, which is the robbery, I take as a starting
point 3½ years’ imprisonment; that is 42 months. That is reduced
J J
to 28 months for your plea of guilty. I then apply the principle
K
of totality. The sentences will be served in this way: K
L 10 months on the 1st offence; L
20 months consecutive on the 2nd offence; and
M 8 months concurrent, which means you will go to prison M
for 30 months.
N N
20. D3, at the time of the offence you were but 14 years
O O
of age. I accept fully that there is no evidence you actually
P used the folding knife either to injure or to threaten. However, P
it is a vicious weapon. You were wandering the streets of Hong
Q Kong with it in your possession. It was available for you to Q
use, though I accept your ultimate purpose was to return it to
R R
D4. In all the circumstances, I accept the recommendation. You
will go to detention centre.
S S
T 21. D4, you were convicted after trial of the theft. Your T
part in that I find to be minor. You acted as a lookout for D1.
U It was D1 who conceived of the scheme. It was D1 who was the U
CRT31/07.6.2011/GTT 5 DCCC1338/2010/Sentence
V V
A A
ringleader. You are deemed to be drug-dependent. You are
serving a sentence at a Drug Addiction Treatment Centre and you
B B
seem to be responding to treatment. I therefore, on that charge,
C make a fresh DATC order. The conviction is recorded. C
D 22. Finally, might I thank counsel for their assistance D
throughout the proceedings.
E E
F F
G Tallentire G
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/07.6.2011/GTT 6 DCCC1338/2010/Sentence
V V
A A
DCCC1338/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1338 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Leung Man-fung (D1)
F Law Nang Yiu (D3) F
Wan Chi-leung (D4)
G G
----------------------
H Before: H H Judge Tallentire H
Date: 7 June 2011 at 10.05 am
Present: Mr Bobby Cheung Man-kwan, PP, of the Department of
I Justice, for HKSAR I
Ms Yu Mei-lin Catherine, of C Yu & Co., for the 1st
J defendant J
Mr Paul Wu, instructed by Idy Chiu & Co., assigned by
the Director of Legal Aid, for the 3rd Defendant
K Mr Cheung Kin-bor Michael, instructed by S H Leung & K
Co., assigned by the Director of Legal Aid, for the
4th Defendant
L L
Offence: (1) Theft (盜竊罪)
(2) Robbery (搶劫罪)
M (3) Possession of an offensive weapon in a public M
place (在公眾地方管有攻擊性武器)
N N
---------------------
O Reasons for Sentence O
---------------------
P P
Q 1. D1, you have pleaded guilty to one offence of theft Q
and one offence of robbery. D4, you were convicted of one
R offence of theft. D3, you were convicted of one offence of R
possession of an offensive weapon that is contrary to section
S 33(1) of the Public Order Ordinance, Cap. 245. S
T T
2. In my verdict, I dealt fully with the facts and I do
not need or intend to repeat those facts. They are well known to
U U
everyone.
CRT31/07.6.2011/GTT 1 DCCC1338/2010/Sentence
V V
A A
3. D1, you are a man of hitherto clear record as is D3.
B B
However, D4, you have 7 previous convictions and are in fact
C currently serving a sentence of Drug Addiction Treatment Centre C
imposed subsequent to the commission of the offence of which you
D are convicted. D
E E
4. D1, in view of your relative youth and clear record, I
adjourned the case for the preparation of a probation officer’s
F F
background report, which is now before me.
G G
5. D3, you are 15 years of age - 14 at the time of the
H offence - and of clear record. Also, given the section and H
ordinance under which you are charged, I therefore adjourned the
I I
case for reports. As you are aware, no doubt, from Mr Wu, the
powers of this court are severely prescribed as to the sentence
J J
that can be imposed.
K K
6. D4, as I have said, you are presently serving a
L sentence of Drug Addiction Treatment Centre. I therefore sought L
a further DATC report to gauge your progress at that
M institution. M
N N
7. I can tell all the three of you that I have read the
reports presented to me and taken them fully into account when
O O
arriving at the sentences which I shall shortly impose.
P P
8. Mr Tse entered full mitigation on your behalf, D1, on
Q the last occasion. This has been supplemented today by Miss Yu. Q
I shall deal, first of all, with Mr Tse’s mitigation. He
R R
reminded me that you are 19 years of age and of clear record. He
produced a medical report which showed that in the past you had
S S
suffered from heart problems but now had effectively recovered,
T which is to be welcomed. T
U U
CRT31/07.6.2011/GTT 2 DCCC1338/2010/Sentence
V V
A A
9. He also produced and referred me to various letters of
support in mitigation from a District Council member, you
B B
yourself, your father and your mother. I have taken those
C letters fully into account when assessing the sentence. He also C
produced various certificates showing that you had undertaken
D charitable work in the field of fund-raising. D
E E
10. He submitted that the offences themselves were not
premeditated. You had been fully co-operative with the police
F F
and with the court, including the giving of evidence against
G others; that I should take this into account despite the G
outcome. He told me that even though the victim of the robbery
H had left Hong Kong, you had still decided to maintain a plea of H
guilty. These pleas of guilty, he submitted, were a clear
I I
demonstration of your remorse.
J J
11. Mr Wu also entered mitigation on behalf of his client.
K
He told me that you, D3, were but 14 years of age at the time of K
the offence and are now fifteen. You had been born on the
L mainland, coming to Hong Kong in 2003 where you received L
education. It was your intention to resume your studies after
M your release. Referring to your family, I am told that your M
father is retired and lives in the mainland, whilst you reside
N N
with your mother and one brother. You, your mother and brother
are in receipt of public assistance. You have three further
O O
sisters who reside apart.
P P
12. Mr Wu submitted that you had never used the folding
Q knife for any unlawful purpose, not even to scare others. He Q
asked for leniency.
R R
13. Mr Cheung entered mitigation on behalf of you, D4. The
S S
prime body of that mitigation was placed before me today, not on
T the last occasion. He referred me to the DATC report, which T
carried a positive recommendation for a further DATC order. He
U reminded me that you had been acquitted of the more serious U
CRT31/07.6.2011/GTT 3 DCCC1338/2010/Sentence
V V
A A
offence of robbery and only convicted of the theft, and that you
were not the ringleader in that offence. The two mobile phones
B B
had been recovered, although the SIM cards had not. He said it
C was your intention to commit no further offences and he urged me C
to let you continue to serve your sentence at DATC. The
D intention is that you will not be released until the end of this D
year.
E E
14. Mr Wu made further brief submissions. The thrust of
F F
those submissions was to persuade me to make a detention centre
G order rather than look at the more lengthy sentence of a G
training centre. I was able to indicate that I was in broad
H agreement with him on that. H
I I
15. Miss Yu, on your behalf, D1, went on to make further
submissions. She reiterated that neither of the offences that
J J
you pleaded guilty to were planned. She reminded me that you are
K
only 19 years of age and of clear record. She also placed two K
authorities before me: HKSAR v Lam Ka Hung, Cr App 294 of 2003,
L and HKSAR v Ting Chiu & Anor, Cr App 174 of 2003. They involved L
non-armed robberies. The court had approved a starting point of
M 4 years’ imprisonment in those cases, though she asked me to M
take the view that this was a less serious robbery than those
N N
and I should take a lower starting point. She reminded me that
you were but 19 years of age and you had given evidence for the
O O
prosecution.
P P
16. I turn now to the sentences. D1, you are relatively
Q youthful, being only 19, and you are of clear record and have Q
pleaded guilty. You did give evidence as a prosecution witness,
R R
but I have to say that in general I disbelieved and rejected
that evidence. However, having said that, the robbery itself has
S S
to be viewed as at the very bottom of the scale. No weapon was
T used. There was mercifully no injury to the victim. The victim, T
whilst obviously very distressed, was generally not put in fear
U to a great extent. I accept that you have pleaded guilty even U
CRT31/07.6.2011/GTT 4 DCCC1338/2010/Sentence
V V
A A
though the victim has left the territory and I also view it as a
spontaneous act. All goods taken were recovered.
B B
C 17. Of course, the first offence in time was that of theft C
from the drunken person. Again, this would appear to be
D spontaneous. The person was never put in fear and all goods have D
been recovered apart from the SIM cards for the phone.
E E
18. I do view you, D1, as the ringleader, certainly in
F F
respect of the robbery and also in respect of the theft. You
G were clearly the prime mover. G
H 19. Taking Charge 1 first of all, I take as a starting H
point 15 months’ imprisonment reduced to 10 months for your plea
I I
of guilty. Charge 2, which is the robbery, I take as a starting
point 3½ years’ imprisonment; that is 42 months. That is reduced
J J
to 28 months for your plea of guilty. I then apply the principle
K
of totality. The sentences will be served in this way: K
L 10 months on the 1st offence; L
20 months consecutive on the 2nd offence; and
M 8 months concurrent, which means you will go to prison M
for 30 months.
N N
20. D3, at the time of the offence you were but 14 years
O O
of age. I accept fully that there is no evidence you actually
P used the folding knife either to injure or to threaten. However, P
it is a vicious weapon. You were wandering the streets of Hong
Q Kong with it in your possession. It was available for you to Q
use, though I accept your ultimate purpose was to return it to
R R
D4. In all the circumstances, I accept the recommendation. You
will go to detention centre.
S S
T 21. D4, you were convicted after trial of the theft. Your T
part in that I find to be minor. You acted as a lookout for D1.
U It was D1 who conceived of the scheme. It was D1 who was the U
CRT31/07.6.2011/GTT 5 DCCC1338/2010/Sentence
V V
A A
ringleader. You are deemed to be drug-dependent. You are
serving a sentence at a Drug Addiction Treatment Centre and you
B B
seem to be responding to treatment. I therefore, on that charge,
C make a fresh DATC order. The conviction is recorded. C
D 22. Finally, might I thank counsel for their assistance D
throughout the proceedings.
E E
F F
G Tallentire G
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/07.6.2011/GTT 6 DCCC1338/2010/Sentence
V V
DCCC1338/2010 HKSAR v. LEUNG MAN FUNG AND OTHERS - LawHero