A A
DCCC1385/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1385 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Au Yeung Wai-man
F F
----------------------
G G
Before: Deputy District Judge H F Woo
Date: 11 April 2012 at 10.32 am
H Present: Miss Lisa Go, PP of the Department of Justice, for H
HKSAR
Mr Yip Shui-man, instructed by Francis Kong & Co., for
I the Defendant I
Offence: Robbery (搶劫罪)
J J
---------------------
K Reasons for Sentence K
L
--------------------- L
The charge
M M
1. The defendant was charged and pleaded guilty to a
count of robbery. Such offence is contrary to section 10 of the
N N
Theft Ordinance, Cap.210.
O O
The Facts
P 2. The facts of this case can be summarised as follows. P
Q 3. Hung Chung-kuen (“PW1”) and his elder brother Hung Q
Wai-kam agreed to contribute HK$200,000 and HK$250,000
R R
respectively to rebuild their ancestral house in the mainland.
S S
4. In October 2011, PW1 came to know a male called “Sze
T Ngan-chai” who claimed that he could get PW1 a better rate of T
exchanging Hong Kong dollars to Renminbi.
U U
CRT5/11.4.2012/TS 1 DCCC1385/2011/Sentence
V V
A A
5. On 10 November 2011 at about 9.15 pm, “Sze Ngan-chai”
called PW1 and informed him that he had the money with him for
B B
the exchange.
C C
6. As instructed, PW1 brought along with him cash of
D HK$450,000 which was wrapped in a black plastic bag and placed D
inside a paper bag. He then arrived outside Kingswood Richly
E E
Plaza.
F F
7. Whilst waiting, PW1 felt that the said paper bag he
G carried was suddenly being snatched by force by the defendant. G
PW1 then pulled the paper bag to himself. A struggle ensued.
H H
8. At this juncture, an unknown male (WP1) rushed towards
I I
PW1 and sprayed something on him. PW1 stepped back. The said
paper bag held by him was torn and the pile of cash inside the
J J
black plastic bag fell off. The defendant then took away the
K
pile of cash and fled with WP1 towards different directions. K
L 9. Whilst chasing after the defendant, PW1 saw the L
defendant had contacts with another unknown male (WP2), who was
M riding a bicycle. M
N N
10. The incident was witnessed by a passer-by (PW3) who
made a police report and guarded the money which was left behind
O O
at the scene.
P P
11. Shortly, the police officers arrived at the scene and
Q saw the defendant running nervously. The defendant was Q
eventually subdued. PW1 identified the defendant to be the
R R
person who snatched away his money.
S S
12. The defendant was then arrested for robbery.
T T
U U
CRT5/11.4.2012/TS 2 DCCC1385/2011/Sentence
V V
A A
13. Under caution, the defendant claimed that it was “Ah
Pau” who had asked him to help in snatching that stuff from PW1,
B B
but he did not know there was money inside that stuff.
C C
14. Neither the plastic bag nor the money was found on the
D defendant. PW1 sustained no injury during the robbery and D
recovered HK$100,000.
E E
Background and mitigation of the defendant
F F
15. The defendant has a clear record. He was almost 17 and
G a Form Four student at the time of the offence. G
H 16. According to his ex-classmates and family members, the H
defendant was a kind person by nature. Due to adverse influence
I I
by the undesirable peers and quite out of character, he
committed the present offence. They begged for leniency on the
J J
defendant’s behalf.
K K
Authorities on robbery sentence
L 17. Robbery is a serious offence, especially an armed L
robbery, which would almost inevitably warrant a long prison
M term in normal circumstances. The maximum penalty for robbery is M
life imprisonment.
N N
18. In R v Yau Kwok Tung [1987] HKLR 782, where a couple
O O
was robbed by two culprits in the early hours of the morning,
P cash was taken and a necklace was snatched as a result. Roberts P
CJ said:
Q Q
“A sentence of 4 years, in the circumstances of this
R case, is at the top end of the tariff for robberies R
where weapons are not displayed. Nevertheless, the
offence took place at night, the victims were
S S
frightened and we do not regard it as so manifestly
excessive that it would be proper for us to interfere
T with it.” T
U 19. In HKSAR v Ting Chiu and Lau Cheung Ling, U
CACC174/2003, an unarmed robbery was committed on two victims by
CRT5/11.4.2012/TS 3 DCCC1385/2011/Sentence
V V
A A
four culprits during midday. Little physical violence was
applied and the value of the property robbed was relatively
B B
minor. The Court of Appeal held that the starting point should
C be 4 years. C
D 20. Robbery is an excepted offence. This court is aware D
that the restriction on imprisonment of young persons under
E E
section 109A of the Criminal Procedure Ordinance, Cap.221, would
therefore not apply.
F F
G 21. The present case was committed at night time. Minimal G
violence was used. This court would treat it as a single case of
H an unarmed robbery committed by the defendant and two who are H
accomplices at large. The money involved was HK$450,000 and the
I I
actual amount being stolen was in the sum of HK$350,000.
J J
22. The defendant was a Form Four student and almost 17 at
K
the time of the offence. Young as he is but not of extreme K
youth, nevertheless, he has a clear record and had been detained
L for five months by now. L
M Training Centre report M
23. It is noted that to call for reports in serious cases
N N
would normally be unusual, but sentencing is an art, not a
mechanical exercise, and must be tailored to the case.
O O
P 24. Given the nature of the offence, the background of the P
present case and that of the defendant, the desirability of
Q rehabilitation in settings other than a long-term imprisonment Q
and public interest, this court thinks it appropriate to call
R R
for a Training Centre report and has not ruled out the
possibility of imposing a Training Centre order, which was
S S
described as the last resort before sending an accused to prison
T (see R v Chan Suet Ngan, HCMA322/1996 (unreported)). T
U U
CRT5/11.4.2012/TS 4 DCCC1385/2011/Sentence
V V
A A
25. The background report prepared by the officer of the
Correctional Services Department revealed that the defendant was
B B
brought up in a working-class family with himself ranking the
C second amongst three siblings. His father was a construction C
worker and was the main supporter of his family. Due to poor
D school performance, the defendant was required to repeat Form D
Four in September 2011 and yet he maintained his loose learning
E E
attitude and lifestyle.
F F
26. During that period of time, the defendant came to know
G an undesirable peer nicknamed “Ah Pau”. Under the temptation of G
easy profits offered by “Ah Pau”, the defendant had engaged in
H debt collection activities with him. He was paid $300 on each H
occasion.
I I
27. Driven by his waywardness and greed, coupled with the
J J
influence of “Ah Pau”, the defendant eventually got involved in
K
the present offence. The defendant claimed that he understood K
the gravity of the charge and had to shoulder the legal
L responsibilities. He promised that he would stay away from his L
undesirable peers and secure a stable job in future.
M M
28. The defendant’s father showed concern for him. He
N N
admitted that he had little knowledge of the defendant’s outside
merriments and linkage as he was busily engaged in his work, but
O O
he promised to render the defendant support for his
P rehabilitation. P
Q 29. Based on the information available and after general Q
assessments by the CSD of the defendant’s behaviour and attitude
R R
whilst on remand, the defendant was considered mentally and
physically fit and suitable for detention in a Training Centre.
S S
For the interest of the defendant’s reformation, the CSD was of
T the view that a period of disciplinary training, coupled with a T
term of statutory supervision, is recommended.
U U
CRT5/11.4.2012/TS 5 DCCC1385/2011/Sentence
V V
A A
Training Centre or Prison
30. It is noted that Training Centre is designed to
B B
provide facilities for the training and the reformation of
C offender. The training in a Training Centre should not be C
considered as the soft option. As in AG v Fong Ming Yuen [1989]
D 2 HKLR 177 and 181, Silke VP explained, D
E E
“The sentence passed by the judge does entail a
deprivation of liberty. In effect a custodial
F sentence. When the Commissioner of Correctional F
Services decides, it is at his discretion, that the
Respondent should be released after a period (not?)
G exceeding three years there will be a further period G
when the Respondent will be under the strict
supervision of officers of the Correctional Services
H H
Department. He will also be subject to recall to the
Centre if he misbehaves during the supervision
I period. I
It is in the public interest and in the Respondent’s
J own interest that his eventual reintegration - for he J
must at some point start to live out his life again
K
in the wider world – into society be a gradual and K
assisted one.
L The sentence passed and pursuant to which the L
Respondent has already undergone several months of
training will bring home to him the gravity of his
M offence and should greatly assist, by its nature, in M
making him a useful member of the community.”
N N
31. Section 4(2) of the Training Centres Ordinance,
O Cap.280, provides that an accused who is sentenced to a Training O
Centre will be detained for not less than six months and not
P more than three years. In practice, inmates spend on average 18 P
months in detention (see Wong Chun Cheong v HKSAR [2001] 4
Q Q
HKCFAR, 12 and 16).
R R
32. The time when an accused is considered suitable for
S release would very much depend upon how he responded in the S
Training Centre. In R v Cheung Wing Wai and others [1993] 2
T HKCLR 139 and 142, Bokhary JA said, T
U U
CRT5/11.4.2012/TS 6 DCCC1385/2011/Sentence
V V
A A
“It must be remembered that detention in a training
centre can be for up to three years and that even
B then there can be post-release supervision for up to B
another three years thereafter. The principal
purpose of detention at a training centre is of
C course rehabilitation. But there can be no doubt C
that rehabilitation under such circumstances carries
D
with it considerable punitive and deterrent D
elements.”
E E
33. The defendant in our case is obviously in need of a
period of disciplinary training. Training Centre will afford him
F F
the best chance of reforming himself and to lead a law-abiding
G life. Such training will not only benefit the defendant but will G
also be in the interest of the community. It is not at all a
H lenient sentence in the circumstances of this case. H
I I
34. This court holds the view that it is a case where a
sentence short of imprisonment can be considered and imposed.
J J
K
35. Having regard to the defendant’s character and K
previous conduct, circumstances of the offence and of the case,
L the contents of the report, it is expedient for the defendant’s L
reformation, for the prevention of crime and also in the
M interest of the society that the defendant should undergo a M
period of training in a Training Centre.
N N
36. This court now imposes a Training Centre order on the
O O
defendant.
P P
Q Q
R R
S S
H F Woo
T Deputy District Judge T
U U
CRT5/11.4.2012/TS 7 DCCC1385/2011/Sentence
V V
A A
DCCC1385/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1385 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Au Yeung Wai-man
F F
----------------------
G G
Before: Deputy District Judge H F Woo
Date: 11 April 2012 at 10.32 am
H Present: Miss Lisa Go, PP of the Department of Justice, for H
HKSAR
Mr Yip Shui-man, instructed by Francis Kong & Co., for
I the Defendant I
Offence: Robbery (搶劫罪)
J J
---------------------
K Reasons for Sentence K
L
--------------------- L
The charge
M M
1. The defendant was charged and pleaded guilty to a
count of robbery. Such offence is contrary to section 10 of the
N N
Theft Ordinance, Cap.210.
O O
The Facts
P 2. The facts of this case can be summarised as follows. P
Q 3. Hung Chung-kuen (“PW1”) and his elder brother Hung Q
Wai-kam agreed to contribute HK$200,000 and HK$250,000
R R
respectively to rebuild their ancestral house in the mainland.
S S
4. In October 2011, PW1 came to know a male called “Sze
T Ngan-chai” who claimed that he could get PW1 a better rate of T
exchanging Hong Kong dollars to Renminbi.
U U
CRT5/11.4.2012/TS 1 DCCC1385/2011/Sentence
V V
A A
5. On 10 November 2011 at about 9.15 pm, “Sze Ngan-chai”
called PW1 and informed him that he had the money with him for
B B
the exchange.
C C
6. As instructed, PW1 brought along with him cash of
D HK$450,000 which was wrapped in a black plastic bag and placed D
inside a paper bag. He then arrived outside Kingswood Richly
E E
Plaza.
F F
7. Whilst waiting, PW1 felt that the said paper bag he
G carried was suddenly being snatched by force by the defendant. G
PW1 then pulled the paper bag to himself. A struggle ensued.
H H
8. At this juncture, an unknown male (WP1) rushed towards
I I
PW1 and sprayed something on him. PW1 stepped back. The said
paper bag held by him was torn and the pile of cash inside the
J J
black plastic bag fell off. The defendant then took away the
K
pile of cash and fled with WP1 towards different directions. K
L 9. Whilst chasing after the defendant, PW1 saw the L
defendant had contacts with another unknown male (WP2), who was
M riding a bicycle. M
N N
10. The incident was witnessed by a passer-by (PW3) who
made a police report and guarded the money which was left behind
O O
at the scene.
P P
11. Shortly, the police officers arrived at the scene and
Q saw the defendant running nervously. The defendant was Q
eventually subdued. PW1 identified the defendant to be the
R R
person who snatched away his money.
S S
12. The defendant was then arrested for robbery.
T T
U U
CRT5/11.4.2012/TS 2 DCCC1385/2011/Sentence
V V
A A
13. Under caution, the defendant claimed that it was “Ah
Pau” who had asked him to help in snatching that stuff from PW1,
B B
but he did not know there was money inside that stuff.
C C
14. Neither the plastic bag nor the money was found on the
D defendant. PW1 sustained no injury during the robbery and D
recovered HK$100,000.
E E
Background and mitigation of the defendant
F F
15. The defendant has a clear record. He was almost 17 and
G a Form Four student at the time of the offence. G
H 16. According to his ex-classmates and family members, the H
defendant was a kind person by nature. Due to adverse influence
I I
by the undesirable peers and quite out of character, he
committed the present offence. They begged for leniency on the
J J
defendant’s behalf.
K K
Authorities on robbery sentence
L 17. Robbery is a serious offence, especially an armed L
robbery, which would almost inevitably warrant a long prison
M term in normal circumstances. The maximum penalty for robbery is M
life imprisonment.
N N
18. In R v Yau Kwok Tung [1987] HKLR 782, where a couple
O O
was robbed by two culprits in the early hours of the morning,
P cash was taken and a necklace was snatched as a result. Roberts P
CJ said:
Q Q
“A sentence of 4 years, in the circumstances of this
R case, is at the top end of the tariff for robberies R
where weapons are not displayed. Nevertheless, the
offence took place at night, the victims were
S S
frightened and we do not regard it as so manifestly
excessive that it would be proper for us to interfere
T with it.” T
U 19. In HKSAR v Ting Chiu and Lau Cheung Ling, U
CACC174/2003, an unarmed robbery was committed on two victims by
CRT5/11.4.2012/TS 3 DCCC1385/2011/Sentence
V V
A A
four culprits during midday. Little physical violence was
applied and the value of the property robbed was relatively
B B
minor. The Court of Appeal held that the starting point should
C be 4 years. C
D 20. Robbery is an excepted offence. This court is aware D
that the restriction on imprisonment of young persons under
E E
section 109A of the Criminal Procedure Ordinance, Cap.221, would
therefore not apply.
F F
G 21. The present case was committed at night time. Minimal G
violence was used. This court would treat it as a single case of
H an unarmed robbery committed by the defendant and two who are H
accomplices at large. The money involved was HK$450,000 and the
I I
actual amount being stolen was in the sum of HK$350,000.
J J
22. The defendant was a Form Four student and almost 17 at
K
the time of the offence. Young as he is but not of extreme K
youth, nevertheless, he has a clear record and had been detained
L for five months by now. L
M Training Centre report M
23. It is noted that to call for reports in serious cases
N N
would normally be unusual, but sentencing is an art, not a
mechanical exercise, and must be tailored to the case.
O O
P 24. Given the nature of the offence, the background of the P
present case and that of the defendant, the desirability of
Q rehabilitation in settings other than a long-term imprisonment Q
and public interest, this court thinks it appropriate to call
R R
for a Training Centre report and has not ruled out the
possibility of imposing a Training Centre order, which was
S S
described as the last resort before sending an accused to prison
T (see R v Chan Suet Ngan, HCMA322/1996 (unreported)). T
U U
CRT5/11.4.2012/TS 4 DCCC1385/2011/Sentence
V V
A A
25. The background report prepared by the officer of the
Correctional Services Department revealed that the defendant was
B B
brought up in a working-class family with himself ranking the
C second amongst three siblings. His father was a construction C
worker and was the main supporter of his family. Due to poor
D school performance, the defendant was required to repeat Form D
Four in September 2011 and yet he maintained his loose learning
E E
attitude and lifestyle.
F F
26. During that period of time, the defendant came to know
G an undesirable peer nicknamed “Ah Pau”. Under the temptation of G
easy profits offered by “Ah Pau”, the defendant had engaged in
H debt collection activities with him. He was paid $300 on each H
occasion.
I I
27. Driven by his waywardness and greed, coupled with the
J J
influence of “Ah Pau”, the defendant eventually got involved in
K
the present offence. The defendant claimed that he understood K
the gravity of the charge and had to shoulder the legal
L responsibilities. He promised that he would stay away from his L
undesirable peers and secure a stable job in future.
M M
28. The defendant’s father showed concern for him. He
N N
admitted that he had little knowledge of the defendant’s outside
merriments and linkage as he was busily engaged in his work, but
O O
he promised to render the defendant support for his
P rehabilitation. P
Q 29. Based on the information available and after general Q
assessments by the CSD of the defendant’s behaviour and attitude
R R
whilst on remand, the defendant was considered mentally and
physically fit and suitable for detention in a Training Centre.
S S
For the interest of the defendant’s reformation, the CSD was of
T the view that a period of disciplinary training, coupled with a T
term of statutory supervision, is recommended.
U U
CRT5/11.4.2012/TS 5 DCCC1385/2011/Sentence
V V
A A
Training Centre or Prison
30. It is noted that Training Centre is designed to
B B
provide facilities for the training and the reformation of
C offender. The training in a Training Centre should not be C
considered as the soft option. As in AG v Fong Ming Yuen [1989]
D 2 HKLR 177 and 181, Silke VP explained, D
E E
“The sentence passed by the judge does entail a
deprivation of liberty. In effect a custodial
F sentence. When the Commissioner of Correctional F
Services decides, it is at his discretion, that the
Respondent should be released after a period (not?)
G exceeding three years there will be a further period G
when the Respondent will be under the strict
supervision of officers of the Correctional Services
H H
Department. He will also be subject to recall to the
Centre if he misbehaves during the supervision
I period. I
It is in the public interest and in the Respondent’s
J own interest that his eventual reintegration - for he J
must at some point start to live out his life again
K
in the wider world – into society be a gradual and K
assisted one.
L The sentence passed and pursuant to which the L
Respondent has already undergone several months of
training will bring home to him the gravity of his
M offence and should greatly assist, by its nature, in M
making him a useful member of the community.”
N N
31. Section 4(2) of the Training Centres Ordinance,
O Cap.280, provides that an accused who is sentenced to a Training O
Centre will be detained for not less than six months and not
P more than three years. In practice, inmates spend on average 18 P
months in detention (see Wong Chun Cheong v HKSAR [2001] 4
Q Q
HKCFAR, 12 and 16).
R R
32. The time when an accused is considered suitable for
S release would very much depend upon how he responded in the S
Training Centre. In R v Cheung Wing Wai and others [1993] 2
T HKCLR 139 and 142, Bokhary JA said, T
U U
CRT5/11.4.2012/TS 6 DCCC1385/2011/Sentence
V V
A A
“It must be remembered that detention in a training
centre can be for up to three years and that even
B then there can be post-release supervision for up to B
another three years thereafter. The principal
purpose of detention at a training centre is of
C course rehabilitation. But there can be no doubt C
that rehabilitation under such circumstances carries
D
with it considerable punitive and deterrent D
elements.”
E E
33. The defendant in our case is obviously in need of a
period of disciplinary training. Training Centre will afford him
F F
the best chance of reforming himself and to lead a law-abiding
G life. Such training will not only benefit the defendant but will G
also be in the interest of the community. It is not at all a
H lenient sentence in the circumstances of this case. H
I I
34. This court holds the view that it is a case where a
sentence short of imprisonment can be considered and imposed.
J J
K
35. Having regard to the defendant’s character and K
previous conduct, circumstances of the offence and of the case,
L the contents of the report, it is expedient for the defendant’s L
reformation, for the prevention of crime and also in the
M interest of the society that the defendant should undergo a M
period of training in a Training Centre.
N N
36. This court now imposes a Training Centre order on the
O O
defendant.
P P
Q Q
R R
S S
H F Woo
T Deputy District Judge T
U U
CRT5/11.4.2012/TS 7 DCCC1385/2011/Sentence
V V