A A
B B
DCCC 187/2014
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 187 OF 2014 D
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E HKSAR E
v
F F
AZHAR ZAMAN (D1)
G LEUNG KEI KIN (D2) G
CHAN MUN KIN (D3)
H H
____________
I Before: HH Judge Dufton I
Date: 7 May 2014
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Present: Miss Peggy Leung, SPP of the Department of Justice,
for HKSAR
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Mr Eddie Law of Eddie P.L. Law & Co
assigned by the Director of Legal Aid, for D1
L Mr Simon Law of Tam & Partners L
assigned by the Director of Legal Aid, for D2 & D3
M Offence: Wounding with intent (有意圖而傷人) M
N N
REASONS FOR SENTENCE
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1. The defendants have pleaded guilty to one joint charge of
P wounding Mak Chun Man with intent to do him grievous bodily harm, P
contrary to section 17 of the Offences against the Person Ordinance,
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Chapter 212.
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2. In summary in mid January this year Mr Mak entered into a
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relationship with Miss Siu Sin Yee. Miss Siu was the former classmate
T of D1 and had been his lover for four years during which time she gave T
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birth to two boys. In December 2013 Miss Siu ended her relationship
C with D1. C
D 3. Around 11.30 p.m. on the 30 January Miss Siu and Mr Mak D
went to the 7-11 convenience store in Shan King Estate, Tuen Mun. On
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seeing D1 holding a chopper Mr Mak tried to run away but was pushed to
F the ground by D1. The three of you then attacked Mr Mak. D1 used the F
chopper whilst D2 used an extendible baton and D3 a hammer.
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H 4. All three of you were arrested the next day. Under caution H
D2 admitted using an extendible baton and D3 using a hammer. D2 and
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D3 then took the police to a meter room where the three weapons were
J recovered, including the chopper used by D1. J
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5. In a subsequent video interview D2 admitted, inter alia,
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being called by D1 and promised a reward of $2-3000 to assault Mr Mak; L
collecting the hammer, chopper and extendible baton; that he used the
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extendible baton to hit the legs and afterwards placed the weapons in the
N meter room. N
O 6. Under caution and subsequent video interview D3 admitted, O
inter alia, he was with D2 when D2 received a call from D1 who
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promised them a reward of $2000 to assault Mr Mak; D1 said he would
Q take a chopper and provide them with a baton and a hammer; D1 gave Q
him a hammer which he used to hit the back of Mr Mak and afterwards
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placed the weapons in the meter room.
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7. Mr Mak suffered serious injuries for which he was
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hospitalised for four days including a wound to the head and multiple
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wounds to the left side of the back and right shoulder with underlying
C muscle being cut. All wounds required suturing. I have read the medical C
reports and although there are some discrepancies between the reports the
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extent of the injuries can clearly be seen in the photographs submitted to
E court. I am informed that fortunately Mr Mak has fully recovered from E
his injuries.
F F
8. In HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673 the
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Court of Appeal referred to the usual range of sentence for wounding
H with intent being described as 3-12 years. You are all however young H
offenders. At the time of the offence D1 was 19 and D2 and D3 were
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both 15. D1 is now 20, D2 is 16 and D3 is still 15.
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9. Section 3F of the Juvenile Offenders Ordinance, Chapter 226
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provides that where a person under 16 is found guilty of an offence by a
L court other than a juvenile court the court shall, unless satisfied that it L
would be undesirable to do so, remit the case to a juvenile court. Taking
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into account the seriousness of the offence and that it is more appropriate
N that one court sentences all defendants, especially D2 and D3 both being N
15 at the time of the offence and their roles in the offence being similar I
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am satisfied that it would be undesirable to remit the case of D3 to a
P juvenile court. I note also Mr Simon Law on behalf of D3 made no P
application to remit the case to a juvenile court.
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R 10. Section 11 of the Juvenile Offenders Ordinance provides no R
young person shall be sentenced to imprisonment if he can be suitably
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dealt with in any other way. Section 109A of the Criminal Procedure
T Ordinance, Chapter 221 provides no court shall sentence a person of or T
over 16 and under 21 years of age to imprisonment unless the court is of
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the opinion that no other method of dealing with such person is
C appropriate. Whilst this provision does not apply to wounding with intent, C
which is an excepted offence, a court must exercise great care before
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committing a young offender to prison.
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11. With these provisions in mind I called for background
F reports from the probation service together with training centre suitability F
reports to provide me with further information about each of you. In
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view of the seriousness of the offence I warned you that even if training
H centre is recommended this did not mean I would impose such an order. H
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D1
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12. I have carefully considered everything said on your behalf by
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Mr Eddie Law together with the content of the mitigation letters and
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certificates of achievement. I take into account your young age having L
turned 20 whilst on remand and that your father died last year.
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13. Although you have a conviction for violence for which you
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were sentenced to probation I note that was when you were 15. You
O appeared in court again in 2012 for an offence of unlawful sexual O
intercourse with Miss Siu at a time when she was under 16. On that
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occasion you were sentenced to perform community service.
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14. The reports reveal that after entering secondary school you
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were unable to catch up with the school curriculum resulting in your need
S to repeat Form One. Instead you idled at home during which time you S
became acquainted with triad elements and joined the Sun Yee On Triad
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Society. You subsequently enrolled at various schools however your
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performance continued to be poor and you finally quit school without
C completing Form Four. C
D 15. While on remand you have managed to behave and observe D
the institutional rules and regulations. The assessment officer found you
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polite in attitude. You told both the assessment officer and the probation
F officer that you promise to behave in the future and ask for a lenient F
sentence. Today you ask to be sentenced to detention in a training centre.
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H Offence H
I 16. I am told that you acted out of impulse. After the separation I
Miss Siu agreed that you could have custody of the two boys however on
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the day of the offence she telephoned you saying that Mr Mak told her
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not to give you the boys. You then became angry and agitated and
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attacked Mr Mak. L
M 17. Whilst there may be a degree of impulse in what you did the M
attack was clearly premeditated. Not only were you armed but you also
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recruited two 15 year old boys, who were also armed, to help you attack
O Mr Mak. Mr Law submits there is no admission in the facts as to this O
recruitment. That is correct the evidence of what D2 and D3 told the
P P
police being inadmissible against you. However the only inference to
Q draw is that you recruited these two boys to help you attack Mr Mak Q
because you were angry with Mr Mak for not allowing you to have access
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to your two sons. There was no other reason for these two young boys to
S be involved other than to help you. I note also that you told the S
assessment officer that you summoned D2 and D3 to assault Mr Mak
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although you denied promising them a reward for helping you.
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18. Although a period of disciplinary training coupled with
C statutory supervision is considered beneficial to you taking into account C
the seriousness of the offence and your character and conduct I am
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satisfied that a period of training in a training centre would not reflect the
E gravity of the crime and that such an order in your case would be too E
lenient (see Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12).
F F
19. Mr Law has submitted a number of authorities from the
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1980s for my consideration. Whilst I have read these cases it is to be
H noted that sentencing for violence of this kind has generally increased H
significantly since the mid 1990s (see for example HKSAR v Ling Man
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Foon CACC 222/2004).
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20. In HKSAR v Hau Ping Chuen the Court of Appeal noting
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that there were a host of wounding with intent decisions which might be
L used in favour of a lenient view whereas others favour a stricter view said L
that, “At the end of the day, a sentencing court obtains a ‘feel’ for the
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appropriate result by regard to the attitude of courts over a period of time
N to a great variety of circumstances.” N
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21. Hau Ping Chuen was an application for review of sentence.
P In summary the facts were that at a meeting of indigenous villagers the P
victim proposed a new practice of allocating invitation cards for villagers
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to attend banquets. The proposal was accepted by all except the
R respondent’s family, who as a result of the proposal would no longer be R
invited automatically to attend the banquets. The next day the respondent
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confronted the victim asking why his invitation had been cancelled.
T Dissatisfied with the explanation the respondent took out a knife and T
attacked the victim. The victim sustained a 5 cm cut wound over the
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abdomen and a 5 cm cut wound on his left groin for which he was
C hospitalised for three days. Fortunately the victim suffered no long-term C
ill effects.
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22. In describing the respondent’s actions the Court of Appeal
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said, “…it is clear that the respondent felt aggrieved at what had occurred
F but his response was out of all proportion to his grievance. By taking the F
law into his own hands in this way, the respondent reacted in an
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extremely dangerous manner, using a knife which was both large and
H sharp…..we have concluded that the least starting point which could be H
imposed for an offence as serious as this is 5 years.”
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J 23. The same observations are equally applicable here in that J
whilst you may have felt aggrieved when Mr Mak said you were not to
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have the boys your response was out of all proportion to your grievance.
L I am however of the view the present case is more serious in that you L
recruited two young boys to help you and that all three of you were armed
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with dangerous weapons resulting in Mr Mak suffering more serious
N injuries. N
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24. In HKSAR v Kan Wai Man [2004] 2 HKLRD G13 the
P appellant, aged 27, with the assistance of three others attacked the P
boyfriend of his former girlfriend with a sharp instrument causing
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multiple stab wounds. Again fortunately none of the injuries were likely
R to have any permanent adverse effect. The Court of Appeal in upholding R
a 6 year starting point observed that grown-up men should be able to
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handle the breaking up of a relationship sensibly and said that such
T attacks must be deterred. T
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25. In all the circumstances I am satisfied a 5 year starting point
C is appropriate. If not for your young age I would have considered a C
sentence higher than 5 years. Giving you full credit for your plea of guilty
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you are convicted and sentenced to 3 years and 4 months imprisonment.
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D2
F F
26. I have carefully considered everything said on your behalf by
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Mr Simon Lam together with the mitigation letters. I take into account
H your young age having turned 16 last month whilst on remand. H
I 27. The reports reveal that you too started to manifest I
behavioural problems after entering secondary school. You acquainted
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with dubious peers who had triad background and under their influence
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joined the Sun Yee On Triad Society. You were first made the subject of
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a Care & Protection Order in January 2012. Not long after you were L
involved in gang fights for which you were given a police
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superintendant’s caution in March 2012. Later in the same year you
N appeared in the juvenile court for robbery and wounding. N
O 28. The Assessment Officer says that during the interview you O
appeared co-operative in attitude and whilst on remand have managed to
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behave without committing any disciplinary offence. Claiming you have
Q learnt a lesson you ask for a lenient sentence. Q
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29. In view of your weak self-control and law abiding concept, a
S period of disciplinary training coupled with a term of statutory S
supervision is said to be beneficial to you. You have expressed the wish
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this morning to be sentenced to imprisonment.
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30. In considering whether a period of training in a training
C centre would be in your interest and that of the community I have taken C
into account you were recruited by D1 and to that extent you are less
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culpable than D1. This nevertheless remains a serious offence having for
E reward willingly taken part in an armed attack to teach Mr Mak a lesson. E
F 31. I have also taken into account that you have convictions in F
October and December 2012 for robbery and wounding 19. On each
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occasion you were placed on probation. Your present conviction places
H you in breach of those probation orders. I have read the files of both H
cases and note that for the wounding you again became involved to teach
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someone a lesson.
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32. Although young your use of violence is a seriously
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aggravating feature, all three of your offences involving violence. Taking
L into account the seriousness of the offence and your character and L
conduct I am satisfied that a period of training in a training centre would
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not reflect the gravity of the crime and that such an order in your case
N would also be too lenient. N
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33. Whilst this was a joint enterprise to attack Mr Mak as noted
P earlier your culpability is less than that of D1. In the circumstances I am P
satisfied a starting point of 4 years and 6 months is appropriate. Giving
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you full credit for your plea of guilty you are convicted and sentenced to
R 3 years imprisonment. R
S 34. As already noted your conviction places you in breach of the S
probation orders imposed in TMCC 700105/2012 and TMCC
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700123/2012. Taking into account the offences in both cases involved
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violence I am satisfied I should exercise my powers under section 6(6) of
C the Probation of Offenders Ordinance, Chapter 298 and re-sentence you C
for those offences. The offence in TMCC 700105/2012 was the robbery
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of a mobile phone in the early hours of the morning and in TMCC
E 700123/2012 was wounding 19 to teach a boy a lesson for being rude to E
your friend. Taking into account you were 14 at the time of these
F F
offences I am satisfied the appropriate sentences giving you full credit for
G your pleas of guilty are 16 months imprisonment in TMCC 700105/2012 G
and 6 months imprisonment in TMCC 700123/2012. I also discharge the
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probation order in TMCC 700123/2012.
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35. Considering totality of sentence to be served by you I order
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these two sentences to be served concurrent with 6 months consecutive
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and 10 months concurrent to the sentence imposed today. I am satisfied a K
total sentence of 3 years and 6 months imprisonment properly reflects
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your culpability for all three offences.
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D3
N N
36. I have carefully considered everything said on your behalf by
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Mr Simon Lam together with the mitigation letters. I take into account
P your young age, still only 15 and that you have a clear record. I take into P
account that you were also recruited by D1 and therefore to that extent
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you are also less culpable than D1. Nevertheless this remains a serious
R offence you having also for reward willingly taken part in an armed R
attack in which you used a hammer.
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37. The reports reveal that you also began to deteriorate in
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secondary school. You lost interest in studying having failed all subjects
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in Form One. You were frequently absent from school preferring to go to
C amusement game centres and cyber cafes where you associated with C
dubious peers affiliated to the Sun Yee On Triad Society. Although you
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were sent by your parents to the Mainland to study you were unable to
E meet the academic standard and returned to Hong Kong without E
completing Form Two.
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38. The assessment officer says you show no remorse for what
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you did and defied assistance from the rehabilitation staff. In these
H circumstances in order to help you develop more insight into your H
problems and cultivate positive moral values as well as strengthen your
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law abiding concept, a period of disciplinary training coupled with
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statutory supervision is said to be beneficial to you. You too have
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expressed the wish this morning to be sentenced to imprisonment. K
L 39. You told the probation officer that you have learnt a lesson L
and become aware of the gravity of the offence. The probation officer is
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of the view that disciplinary training might be conducive to rebuilding
N your character and positive lifestyle as well as strengthening your self N
will to sever undesirable association.
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P 40. Taking into account your clear record and that you are still P
only 15 and having carefully considered your character and conduct and
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the circumstances of the offence I am satisfied that in your case it would
R be in your interest and that of the community that you undergo a period of R
training in a training centre. You are convicted and sentenced to
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detention in a training centre.
T (D. J. DUFTON) T
District Judge
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