DCCC720/2015 HKSAR v. WONG KA LOK AND OTHERS - LawHero
DCCC720/2015
區域法院（刑事）HH Judge Douglas T.H. Yau21/2/2016
DCCC720/2015
A A
B DCCC 720/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 720 OF 2015
E E
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F HKSAR F
v.
G G
WONG KA LOK (D1)
H CHUI KWAN HO (D2) H
CHAN WAN CHI (D3)
I I
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J Before: HH Judge Douglas T.H. Yau J
Date: 22nd February 2016 at 2:03 pm
K K
Present: Mr. WONG Hay Yiu, Counsel on fiat, for HKSAR
L Mr. Michael CHEUNG, instructed by M/s Alan Ho & Co, L
assigned by DLA, for D1
M M
Mr. Victor HO, instructed by M/s Edward Lau, Wong & Lou,
N assigned by DLA, for D2 N
Mr. Sammy HUI, instructed by M/s Yeung & Chan,
O O
assigned by DLA, for D3
P Offence: Robbery (搶劫罪) P
Q ---------------------------- Q
Reasons for Sentence
R R
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S 1. The 3 defendants pleaded guilty to one joint charge of Robbery, S
contrary to section 10 of the Theft Ordinance, Cap.210.
T T
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A A
B 2. At the time of sentence, D1, D2 and D3 are aged respectively 24, 17 B
and 17.
C C
D Summary of Facts D
E 3. 73 year old Mr. So was walking alone near the junction of On Fu E
Road and Po Yick Street in Tai Po at around 4:50pm on 22 nd May
F F
2015 when the three defendants suddenly appeared and approached
G him from behind. G
H H
4. One of them grabbed his neck, causing him to fall to the ground.
I They then pressed him onto the ground and snatched his shoulder I
bag, which contained $100,000 cash and a mobile phone. The
J J
money was Mr. So’s entire life savings.
K K
5. The defendants fled in different directions. Mr. So reported the
L L
matter to the police and was taken to the hospital. He suffered
M abrasions over both arms and elbows, redness over his forehead, M
left side of face and both knees.
N N
O O
6. Closed circuit television footages around the area where the
P
robbery took place were collected and analysed by the police. P
th
Investigation eventually led to the arrest of D1 and D2 on 5 June.
Q Q
R
7. Under caution, D1 admitted to committing the robbery together R
with D2 and D3. D1 claimed that a ‘Chan Sin Lung’ was the
S S
mastermind.
T T
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A A
B 8. Also under caution, D2 admitted to assaulting the victim of the B
robbery with D1, but denied snatching his belongings.
C C
D 9. D3 and the said Chan Sin Lung were put on police wanted and D
watch lists.
E E
F 10. D3 was arrested inside a flat in Tin Yan Estate in Tin Shui Wai on F
4th August 2015. Under caution, D3 admitted to robbery and also
G G
claimed that a Chan Sin Lung was the mastermind.
H H
11. The three defendants all took part in video recorded interviews
I I
under caution.
J J
D1’s VRI
K K
12. D1 claimed in his VRI that his friend D3 asked if he was interested
L L
to earn some quick money in the afternoon of the day of the robbery.
M Upon D1 agreeing, he went to D3’s residence, where D3 told him M
that their mutual friend, Chan Sin Lung, was planning to rob an old
N N
man.
O O
P
13. D1 then got changed, brought three masks and went to Tai Po P
Market area with D3 by taxi. They went to Po Yick Street where D1
Q Q
met D2 for the first time.
R R
14. D2 told D1 that the targeted old man was wearing a polo shirt. D1
S S
then gave D2 and D3 each a mask. Shortly, Chan Sin Lung
T appeared and had a short conversation with D2 before he left. T
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A A
B 15. When D2 spotted the target, i.e. Mr. So, all three of them dashed B
towards him.
C C
D 16. D1 subdued the man onto the ground, D2 assaulted the man while D
D3 snatched away his shoulder bag. They then fled.
E E
F 17. D1 fled into a nearby boutique and hid there before he went home F
by taxi. When home, D1 threw away the clothes he had worn during
G G
the robbery.
H H
18. D1 later contacted D3 and Chan Sin Lung to ask for his share of the
I I
loot. Chan Sin Lung told him that they had stolen around $70,000
J from the victim. Chan Sin Lung eventually deposited $2,000 into J
D1’s bank account. Bank transaction records show that a cash
K K
deposit of $2,000 was made into D1’s account at 9:59pm on 22 nd
L L
May 2015. D3 also gave D1 another $4,000 in cash the following
M
day. M
N N
19. Of the $6,000, D1 said he had lent $600 to D2 and had spent the
O rest. O
P P
20. D1 provided the full name of D3 and Chan Sin Lung, as well as the
Q mobile number of D2, D3 and Chan to the police. Q
R R
D2’ VRI
S S
21. D2 claimed in his VRI that it was D1 who called him and told him
T to go to a bar in the Tai Po Market area to assault someone. T
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A A
B 22. When D2 arrived outside the bar, he saw D1 there with an unknown B
male (according to D1’s VRI, he met D2 for the first time that day).
C C
D 23. Several minutes later, another unknown male arrived and took out a D
cap and two masks from his rucksack. D1 told D2 to put on the
E E
mask and cap.
F F
24. D2 followed D1 and D3 to Po Yick Street where they spotted the
G G
victim inside the park nearby.
H H
25. When the victim was leaving the park a short while later, D2
I I
claimed that D1 immediately put on his own mask and dashed
J towards the man and grabbed his neck from behind. D1 and the man J
then fell onto the ground during the struggle.
K K
L
26. D2 admitted to assaulting the man’s forehead a few times, while D1 L
M
snatched the shoulder bag from him and then passed it onto D3. M
N N
27. D2 then fled and disposed of his mask and cap at a rear lane. The
O cap was later found by the police. O
P P
28. When D2 fled to Fu Shin Estate, he came across D3, who gave him
Q a black T-shirt to wear. D2 put on the T-shirt and went home. He Q
later threw away the T-shirt at a rubbish bin in the estate.
R R
S D3’s VRI S
T 29. D3 in his VRI claimed that he received a phone call from Chan Sin T
Lung who asked D3 to go to the place where the robbery took place.
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A A
B There, Chan told D3 to rob a man by snatching the man’s shoulder B
bag. Chan told D3 that there was plenty of money inside the bag.
C C
D 30. When D3 arrived at the location, he saw D1 and D2 who were D
already wearing masks. The three of them then waited for the
E E
victim to leave the nearby park.
F F
31. After a short while, D3 saw the target leaving the park. The three of
G G
them then dashed towards the man and punched him in the
H abdomen a few times. Both D3 and the man fell to the ground H
during the struggle.
I I
J 32. After D3 snatched the man’s shoulder bag away, the three of them J
fled. D3 fled to the Hog Kong Railway Museum, where he made a
K K
phone call to Chan Sin Lung.
L L
M
33. Chan Sin Lung later appear and took away the snatched shoulder M
bag and gave around $12,000-$13,000 to D3 as a reward.
N N
O 34. D3 later gave have of that reward to D1 and had since spent the O
balance.
P P
Q Previous convictions Q
R
35. All three defendants are of previously clear record. R
S S
Mitigation
T T
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B 36. A background report; Rehabilitation, Detention and Training B
Centre reports; and a Training Centre report were ordered to be
C C
prepared on D1, D2 and D3 respectively.
D D
Factors to be considered that are common to all three
E E
defendants’ commission of the offence
F F
G 37. The robbery was planned and organized. There were three of them G
together committing the offence. The victim was a 73 year old man.
H H
They had robbed the victim of his life savings. Masks were brought
I along by D1 and used by all three defendants to hide their faces I
during the robbery, no doubt to conceal their identity.
J J
K 38. On the other hand, all three defendants are of previously clear K
record at the time of their commission of the present offence. No
L L
weapons were used in the robbery.
M M
39. It is fortunate that the victim did not suffer serious injuries, because
N N
given his age, a simple fall to the ground can cause a lot of damage
O O
or even prove fatal.
P P
40. I note that there are material difference between the three
Q Q
defendants’ account of the robbery made in their VRIs. I find
R
however that the differences would not affect their individual R
culpability in the commission of the offence for the following
S S
reasons.
T T
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A A
B 41. In relation to D1, he knew before arriving at the scene that he was B
going to take part in a robbery with others.
C C
D 42. In relation to D2, although he did not admit to knowing that they D
were to take the money from the man, D2 did admit to the summary
E E
of facts that was read out to him in open court after he entered his
F guilty plea to robbery. At paragraph 14 of the facts, D2 specifically F
admitted that, at the relevant time, he, D1 and D3 together with
G G
Chan had robbed PW1, the victim Mr. So.
H H
43. In relation to D3, he had already been told by Chan that they were to
I I
rob a man by snatching his shoulder bag and was also told that there
J was plenty of money inside. J
K K
44. Based on their own admissions, the defendants were all ‘in it
L
together’ on the robbery, and each is responsible for the others’ L
M
acts. M
N N
45. There is, however, no evidence to suggest that the defendants are
O the masterminds of the robbery. It would appear that a ‘Chan Sin O
Lung’ was the person who planned and organized the robbery and
P P
had directed the defendants to the location where he knew the
Q victim would be. It can also be inferred that this Chan Sin Lung Q
knew about the victim’s habit of carrying his life savings on his
R R
person, since according to D3, Chan had told him that there was
S plenty of money inside the shoulder bag. S
T T
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B 46. None of the stolen money had been recovered. There has been no B
offer of restitution from any of the defendants.
C C
D Individual considerations D
E D1 E
F 47. D1 is 24 years old. He was the one who had brought the masks for F
use in the robbery and was given a total of $6,000 by Chan and D3
G G
after the robbery.
H H
48. A background report was prepared on the defendant prior to
I I
sentence. According to the report, the defendant had good family
J relationship but mingled with the wrong people, leading to the J
commission of the present offence out of his greed for ‘fast money’.
K K
L 49. There are no special mitigating circumstances in relation to D1 L
apart from his guilty plea.
M M
N D2 N
O 50. D2 is 17 years old. According to the reports ordered to be prepared O
on him, the defendant was polite but reserved when being
P P
interviewed. The defendant’s mother showed deep concern for him.
Q The defendant’s mother said he had all along behaved very well at Q
home and in school. It was only when he was in Form Six that he
R R
was influenced by some bad peers. She promises to keep an eye on
S him and to help him get back on the right track. S
T T
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A A
B 51. Since the present incident, the defendant had cut off association B
with his triad-linked peers. Although he did enrol in a course in
C C
September 2015, he quit just two months later and started to work
D as a part-time air-conditioner repair apprentice. He also quit that job D
in December.
E E
F 52. The Medical Officer confirmed that D2 is medically unfit for F
detention in a Detention Centre because of Type I Obesity. It is the
G G
opinion of Officer Luk (Rehabilitation Unit 1/ Assessment) that, in
H view of his weak self-control and law abiding concept, a period of H
disciplinary training coupled with statutory supervision would be
I I
beneficial to his reform. Officer Luk recommended that D2 is
J suitable for detention in a Rehabilitation Centre. Space is, however, J
available in both the Rehabilitation Centre and the Training Centre.
K K
L L
53. D2 also submitted a bundle in mitigation, which contained his
M
achievements in school as well as proof of his involvement in M
community service work. There are also various letters in
N N
mitigation written on behalf of the defendant. They generally speak
O to the good nature of the defendant and that he was probably led O
astray by undesirable peers in the commission of the present
P P
offence.
Q Q
D3
R R
54. D3 is 17 years old. His parents divorced and he grew up under the
S S
care of his paternal grandparents. The defendant studied up to Form
T Two level in Hong Kong and was then taken to Macao to stay with T
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A A
B his father and stepmother for about a year. He never went back to B
school though.
C C
D 55. When he was 15 years old, he worked as a kitchen helper in Macao. D
After returning to Hong Kong in early 2014, he had worked
E E
intermittently as a kitchen helper and a warehouse attendant on a
F casual basis but remained indolent most of the time. F
G G
56. The defendant did not show much interest in schoolwork and
H started to smoke, play truant and being disrespectful to his teachers H
in school.
I I
J 57. Upon his return to Hong Kong from Macao, the defendant began J
mingling with delinquent youths all day. He admitted during his
K K
interview that he joined a youth gang professing to be affiliated
L
with ‘San Yee On’ triad society. Under peer pressure, he set out to L
M
settle old scores with a rival youth gang and as a result was arrested M
on 4th March 2015 for suspected blackmail, theft and inflicting
N N
grievous bodily harm.
O O
58. Whilst still on bail for the said suspected offences, D3 committed
P P
the present robbery. The defendant explained in the interview that
Q he committed the offence because he was short of money at the Q
time.
R R
S 59. Although the defendant claimed that he meant to turn over a new S
leaf, Officer Liu found it hard to tell if his remorse was genuine.
T T
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A A
B The defendant impressed him as yet to be determined in breaking B
off his undesirable way of life.
C C
D 60. The defendant’s paternal grandfather and father had repeatedly D
urged him to behave and to avoid his unscrupulous friends but to no
E E
avail. They admitted that they had no way to keep track of the
F defendant, and expected external intervention and a lengthy period F
of disciplinary training in a confined setting to do him good.
G G
H 61. It is Officer Liu’s recommendation that the defendant is suitable for H
detention in a Training Centre.
I I
J Sentence J
K 62. Robbery is a serious offence. The maximum sentence for robbery K
on conviction upon indictment is that of imprisonment for life.
L L
M 63. In arriving at the proper sentence, I must take into consideration the M
principles of sentencing and balance between rehabilitation,
N N
retribution, deterrence and prevention.
O O
P
64. There was no use of weapon in the robbery and as such the P
sentencing guidelines laid down in the case of R v Mo Kwong Sang,
Q Q
CACC 359/1981 do not apply.
R R
Sentence for D1
S S
65. D1 is 24 years old.
T T
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B 66. In the case of HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563, the B
victim was a 17 year old female student on her way home at 5am.
C C
D2 kept a lookout at the entrance to the building as D1 entered the
D lobby and pushed the victim in the back as she waited for a lift D
while talking on her iPhone. D1 snatched the phone and fled.
E E
F 67. No weapon was used in the robbery and the victim was only F
confronted by one robber. The learned trial judge adopted a starting
G G
point of 3 years and 3 months’ imprisonment, reduced it for plea,
H and sentenced D1 and D2 each to 2 years and 2 months’ H
imprisonment.
I I
J 68. Their appeal against sentence was dismissed. The Court of Appeal J
found that although both defendants were of clear record, the
K K
starting point adopted was appropriate. The Court of Appeal agreed
L
with the trial judge’s finding that the circumstances of the offence L
M
were a “step up from a theft or snatching” in that D1 pushed the M
young female victim in the back whilst snatching her phone. The
N N
Court also noted that the victim, being a young woman returning
O home in the early hours of the morning, was vulnerable to this kind O
of cowardly attack.
P P
Q 69. In our present case, three robbers confronted the victim. He was Q
grabbed by the neck from behind and fell to the ground. The
R R
shoulder bag was then snatched from him. He suffered minor
S injuries. I find that the circumstances of our present case is slightly S
more serious than that of Ku Kwok Wai.
T T
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A A
B 70. Bearing in mind all the circumstances of the commission of the B
robbery, in relation to D1, I find that an immediate custodial
C C
sentence is necessary.
D D
71. Taking into consideration all the circumstances concerning the
E E
robbery, as well as D1’s background including his clear record, I
F find that a proper starting point is that of 3 and a half years’ F
imprisonment.
G G
H 72. I do not find there to be any mitigating factors other than D1’s H
guilty plea. I also do not find any aggravating factors against D1.
I I
J 73. D1 is therefore sentenced to 2 years and 4 months’ imprisonment J
upon granting him the customary one-third discount for his guilty
K K
plea.
L L
M
D2 and D3’s sentence M
74. D2 and D3 are 17 years old.
N N
O O
Training Centre as a sentencing option in robbery cases
P 75. In relation to D2 and D3, since robbery under section 10 of the P
Theft Ordinance is an excepted offence under Schedule 3 of the
Q Q
Criminal Procedure Ordinance, section 109A of that ordinance does
R not apply. In other words, imprisonment needs not be the last resort R
when dealing with D2 and D3. Be that as it may, I find that the
S S
following case provides a useful reference point when sentencing
T T
young robbers.
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A A
B 76. In the case of HKSAR v Wong Tsz-hin [2013] 1 HKC 239, the B
appellant was a 16 years old student and had used a knife to rob two
C C
victims on two different occasions, respectively of $300 cash, US$1
D and a mobile phone; and cash of $1,600 and a mobile phone. The D
appellant had previously made the acquaintance of the victims via
E E
an online gaming platform.
F F
77. The learned trial judge adopted a starting point of 6 years’
G G
imprisonment for each of the two charges. The final discounted
H sentence after the appellant’s guilty plea was that of 4 years and 2 H
months’ imprisonment. There the judge did not consider that any
I I
pre-sentence reports would serve any purpose and took the view
J that given the gravity of the crime, the only possible sentence was a J
sentence of imprisonment.
K K
L
78. When considering the appellant’s appeal against sentence, the L
M
Court of Appeal first of all pointed out that robbery is a very serious M
offence carrying a maximum sentence of life imprisonment. The
N N
Court also agreed with the trial judge’s observation that the
O offences in question were carefully planned and that the appellant O
had used a fake identity to entice the victims to a remote place in
P P
order to rob them. The appellant used a knife to threaten the victims,
Q and the victims must have been put through much fear. Q
R R
79. The Court however found that the case was not a very bad case of
S the type, pointing out that the appellant acted alone, had inflicted no S
injury to the victims and that the case only involved a small sum of
T T
cash and two mobile phones.
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A A
B 80. The Court further recognized that the appellant was only 16 at the B
time of the offences, had a clear record and had pleaded guilty to the
C C
charges. The appellant’s friends, teachers and school principal
D supported him. The Court of Appeal disagreed with the trial judge D
that significant terms of imprisonment was the only option in
E E
sentencing.
F F
81. The Court of Appeal then referred to the case of R v Cheung
G G
Wing-wai and others [1993] 2 HKCLR 139, where the Court
H expressly approved Training Centre Orders for two defendants who H
were 16 and 17 years old respectively, who had pleaded guilty to
I I
serious charges of robbery and handling stolen goods. There they
J targeted supermarkets and threatened staff and customers there with J
large knives and gagged and tied them. Senior staff were forced at
K K
knife point to open safes from which considerable sums of money
L L
were taken. Staff and customers also had their valuable and
M
documents of identity taken from them. M
N N
82. Training Centre Orders were made against the defendants in that
O case. O
P P
83. The Court in Kwok Tsz-hin noted that those defendants were under
Q the influence of two more mature men who were ex-police officers, Q
but also noted that the offences they had committed were much
R R
more serious than those committed by the appellant.
S S
84. The Court of Appeal eventually found that, “in view of the
T T
applicant’s young age and clear record and for the sake of the
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A A
B community, it is of importance that the applicant should be B
rehabilitated and a long term imprisonment may not be the best
C C
answer for his rehabilitation.”
D D
85. Reports were ordered to be prepared, the appeal against sentence
E E
was allowed, and Training Centre Orders in respect of both charges
F against the appellant were imposed. F
G G
86. In our present case, it is obvious that the robbery was less serious
H than that of either Wong Tsz-hin or Cheung Wing-wai. Both D2 and H
D3 entered a timely guilty plea. They are both of clear record. Most
I I
importantly, they were both just 17 years old at the time of the
J commission of the offence. They were not the mastermind of the J
robbery and were clearly influenced by this ‘Chan Sin Lung’
K K
character.
L L
M
87. As for their background, I find that D2 did better than D3 in front of M
the CSD officers who interviewed them, but that should not be a
N N
reason not to grant D3 an opportunity to rehabilitate, should that be
O the appropriate path to take. O
P P
88. Bearing in mind the circumstances of the commission of the
Q robbery and their personal background, and having considered the Q
detailed reports prepared on D2 and D3, I find that a period of
R R
disciplinary training coupled with statutory supervision would be
S beneficial to the defendants. S
T T
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A A
B 89. Despite the recommendation by the CSD Officer of D2’s suitability B
to be remanded in the Rehabilitation Centre, I find that the
C C
seriousness of the offence require a sterner sentence.
D D
90. Pursuant to section 4(1) of the Training Centres Ordinance,
E E
Cap.280, with D2 and D3 being 17 years old, and with myself being
F satisfied that it is in the interest of the community and that having F
regard to their character and previous conduct, and to the
G G
circumstances of the offence, it is expedient for their reformation
H and for the prevention of crime that they should undergo a period of H
training in a training centre, I order that D2 and D3 each be
I I
sentenced to detention in a training centre.
J J
K K
L L
(Douglas T.H .Yau)
District Judge
M M
N N
O O
P P
Q Q
R R
S S
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B DCCC 720/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 720 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
WONG KA LOK (D1)
H CHUI KWAN HO (D2) H
CHAN WAN CHI (D3)
I I
-----------------------------------
J Before: HH Judge Douglas T.H. Yau J
Date: 22nd February 2016 at 2:03 pm
K K
Present: Mr. WONG Hay Yiu, Counsel on fiat, for HKSAR
L Mr. Michael CHEUNG, instructed by M/s Alan Ho & Co, L
assigned by DLA, for D1
M M
Mr. Victor HO, instructed by M/s Edward Lau, Wong & Lou,
N assigned by DLA, for D2 N
Mr. Sammy HUI, instructed by M/s Yeung & Chan,
O O
assigned by DLA, for D3
P Offence: Robbery (搶劫罪) P
Q ---------------------------- Q
Reasons for Sentence
R R
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S 1. The 3 defendants pleaded guilty to one joint charge of Robbery, S
contrary to section 10 of the Theft Ordinance, Cap.210.
T T
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A A
B 2. At the time of sentence, D1, D2 and D3 are aged respectively 24, 17 B
and 17.
C C
D Summary of Facts D
E 3. 73 year old Mr. So was walking alone near the junction of On Fu E
Road and Po Yick Street in Tai Po at around 4:50pm on 22 nd May
F F
2015 when the three defendants suddenly appeared and approached
G him from behind. G
H H
4. One of them grabbed his neck, causing him to fall to the ground.
I They then pressed him onto the ground and snatched his shoulder I
bag, which contained $100,000 cash and a mobile phone. The
J J
money was Mr. So’s entire life savings.
K K
5. The defendants fled in different directions. Mr. So reported the
L L
matter to the police and was taken to the hospital. He suffered
M abrasions over both arms and elbows, redness over his forehead, M
left side of face and both knees.
N N
O O
6. Closed circuit television footages around the area where the
P
robbery took place were collected and analysed by the police. P
th
Investigation eventually led to the arrest of D1 and D2 on 5 June.
Q Q
R
7. Under caution, D1 admitted to committing the robbery together R
with D2 and D3. D1 claimed that a ‘Chan Sin Lung’ was the
S S
mastermind.
T T
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A A
B 8. Also under caution, D2 admitted to assaulting the victim of the B
robbery with D1, but denied snatching his belongings.
C C
D 9. D3 and the said Chan Sin Lung were put on police wanted and D
watch lists.
E E
F 10. D3 was arrested inside a flat in Tin Yan Estate in Tin Shui Wai on F
4th August 2015. Under caution, D3 admitted to robbery and also
G G
claimed that a Chan Sin Lung was the mastermind.
H H
11. The three defendants all took part in video recorded interviews
I I
under caution.
J J
D1’s VRI
K K
12. D1 claimed in his VRI that his friend D3 asked if he was interested
L L
to earn some quick money in the afternoon of the day of the robbery.
M Upon D1 agreeing, he went to D3’s residence, where D3 told him M
that their mutual friend, Chan Sin Lung, was planning to rob an old
N N
man.
O O
P
13. D1 then got changed, brought three masks and went to Tai Po P
Market area with D3 by taxi. They went to Po Yick Street where D1
Q Q
met D2 for the first time.
R R
14. D2 told D1 that the targeted old man was wearing a polo shirt. D1
S S
then gave D2 and D3 each a mask. Shortly, Chan Sin Lung
T appeared and had a short conversation with D2 before he left. T
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A A
B 15. When D2 spotted the target, i.e. Mr. So, all three of them dashed B
towards him.
C C
D 16. D1 subdued the man onto the ground, D2 assaulted the man while D
D3 snatched away his shoulder bag. They then fled.
E E
F 17. D1 fled into a nearby boutique and hid there before he went home F
by taxi. When home, D1 threw away the clothes he had worn during
G G
the robbery.
H H
18. D1 later contacted D3 and Chan Sin Lung to ask for his share of the
I I
loot. Chan Sin Lung told him that they had stolen around $70,000
J from the victim. Chan Sin Lung eventually deposited $2,000 into J
D1’s bank account. Bank transaction records show that a cash
K K
deposit of $2,000 was made into D1’s account at 9:59pm on 22 nd
L L
May 2015. D3 also gave D1 another $4,000 in cash the following
M
day. M
N N
19. Of the $6,000, D1 said he had lent $600 to D2 and had spent the
O rest. O
P P
20. D1 provided the full name of D3 and Chan Sin Lung, as well as the
Q mobile number of D2, D3 and Chan to the police. Q
R R
D2’ VRI
S S
21. D2 claimed in his VRI that it was D1 who called him and told him
T to go to a bar in the Tai Po Market area to assault someone. T
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A A
B 22. When D2 arrived outside the bar, he saw D1 there with an unknown B
male (according to D1’s VRI, he met D2 for the first time that day).
C C
D 23. Several minutes later, another unknown male arrived and took out a D
cap and two masks from his rucksack. D1 told D2 to put on the
E E
mask and cap.
F F
24. D2 followed D1 and D3 to Po Yick Street where they spotted the
G G
victim inside the park nearby.
H H
25. When the victim was leaving the park a short while later, D2
I I
claimed that D1 immediately put on his own mask and dashed
J towards the man and grabbed his neck from behind. D1 and the man J
then fell onto the ground during the struggle.
K K
L
26. D2 admitted to assaulting the man’s forehead a few times, while D1 L
M
snatched the shoulder bag from him and then passed it onto D3. M
N N
27. D2 then fled and disposed of his mask and cap at a rear lane. The
O cap was later found by the police. O
P P
28. When D2 fled to Fu Shin Estate, he came across D3, who gave him
Q a black T-shirt to wear. D2 put on the T-shirt and went home. He Q
later threw away the T-shirt at a rubbish bin in the estate.
R R
S D3’s VRI S
T 29. D3 in his VRI claimed that he received a phone call from Chan Sin T
Lung who asked D3 to go to the place where the robbery took place.
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A A
B There, Chan told D3 to rob a man by snatching the man’s shoulder B
bag. Chan told D3 that there was plenty of money inside the bag.
C C
D 30. When D3 arrived at the location, he saw D1 and D2 who were D
already wearing masks. The three of them then waited for the
E E
victim to leave the nearby park.
F F
31. After a short while, D3 saw the target leaving the park. The three of
G G
them then dashed towards the man and punched him in the
H abdomen a few times. Both D3 and the man fell to the ground H
during the struggle.
I I
J 32. After D3 snatched the man’s shoulder bag away, the three of them J
fled. D3 fled to the Hog Kong Railway Museum, where he made a
K K
phone call to Chan Sin Lung.
L L
M
33. Chan Sin Lung later appear and took away the snatched shoulder M
bag and gave around $12,000-$13,000 to D3 as a reward.
N N
O 34. D3 later gave have of that reward to D1 and had since spent the O
balance.
P P
Q Previous convictions Q
R
35. All three defendants are of previously clear record. R
S S
Mitigation
T T
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A A
B 36. A background report; Rehabilitation, Detention and Training B
Centre reports; and a Training Centre report were ordered to be
C C
prepared on D1, D2 and D3 respectively.
D D
Factors to be considered that are common to all three
E E
defendants’ commission of the offence
F F
G 37. The robbery was planned and organized. There were three of them G
together committing the offence. The victim was a 73 year old man.
H H
They had robbed the victim of his life savings. Masks were brought
I along by D1 and used by all three defendants to hide their faces I
during the robbery, no doubt to conceal their identity.
J J
K 38. On the other hand, all three defendants are of previously clear K
record at the time of their commission of the present offence. No
L L
weapons were used in the robbery.
M M
39. It is fortunate that the victim did not suffer serious injuries, because
N N
given his age, a simple fall to the ground can cause a lot of damage
O O
or even prove fatal.
P P
40. I note that there are material difference between the three
Q Q
defendants’ account of the robbery made in their VRIs. I find
R
however that the differences would not affect their individual R
culpability in the commission of the offence for the following
S S
reasons.
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A A
B 41. In relation to D1, he knew before arriving at the scene that he was B
going to take part in a robbery with others.
C C
D 42. In relation to D2, although he did not admit to knowing that they D
were to take the money from the man, D2 did admit to the summary
E E
of facts that was read out to him in open court after he entered his
F guilty plea to robbery. At paragraph 14 of the facts, D2 specifically F
admitted that, at the relevant time, he, D1 and D3 together with
G G
Chan had robbed PW1, the victim Mr. So.
H H
43. In relation to D3, he had already been told by Chan that they were to
I I
rob a man by snatching his shoulder bag and was also told that there
J was plenty of money inside. J
K K
44. Based on their own admissions, the defendants were all ‘in it
L
together’ on the robbery, and each is responsible for the others’ L
M
acts. M
N N
45. There is, however, no evidence to suggest that the defendants are
O the masterminds of the robbery. It would appear that a ‘Chan Sin O
Lung’ was the person who planned and organized the robbery and
P P
had directed the defendants to the location where he knew the
Q victim would be. It can also be inferred that this Chan Sin Lung Q
knew about the victim’s habit of carrying his life savings on his
R R
person, since according to D3, Chan had told him that there was
S plenty of money inside the shoulder bag. S
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A A
B 46. None of the stolen money had been recovered. There has been no B
offer of restitution from any of the defendants.
C C
D Individual considerations D
E D1 E
F 47. D1 is 24 years old. He was the one who had brought the masks for F
use in the robbery and was given a total of $6,000 by Chan and D3
G G
after the robbery.
H H
48. A background report was prepared on the defendant prior to
I I
sentence. According to the report, the defendant had good family
J relationship but mingled with the wrong people, leading to the J
commission of the present offence out of his greed for ‘fast money’.
K K
L 49. There are no special mitigating circumstances in relation to D1 L
apart from his guilty plea.
M M
N D2 N
O 50. D2 is 17 years old. According to the reports ordered to be prepared O
on him, the defendant was polite but reserved when being
P P
interviewed. The defendant’s mother showed deep concern for him.
Q The defendant’s mother said he had all along behaved very well at Q
home and in school. It was only when he was in Form Six that he
R R
was influenced by some bad peers. She promises to keep an eye on
S him and to help him get back on the right track. S
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A A
B 51. Since the present incident, the defendant had cut off association B
with his triad-linked peers. Although he did enrol in a course in
C C
September 2015, he quit just two months later and started to work
D as a part-time air-conditioner repair apprentice. He also quit that job D
in December.
E E
F 52. The Medical Officer confirmed that D2 is medically unfit for F
detention in a Detention Centre because of Type I Obesity. It is the
G G
opinion of Officer Luk (Rehabilitation Unit 1/ Assessment) that, in
H view of his weak self-control and law abiding concept, a period of H
disciplinary training coupled with statutory supervision would be
I I
beneficial to his reform. Officer Luk recommended that D2 is
J suitable for detention in a Rehabilitation Centre. Space is, however, J
available in both the Rehabilitation Centre and the Training Centre.
K K
L L
53. D2 also submitted a bundle in mitigation, which contained his
M
achievements in school as well as proof of his involvement in M
community service work. There are also various letters in
N N
mitigation written on behalf of the defendant. They generally speak
O to the good nature of the defendant and that he was probably led O
astray by undesirable peers in the commission of the present
P P
offence.
Q Q
D3
R R
54. D3 is 17 years old. His parents divorced and he grew up under the
S S
care of his paternal grandparents. The defendant studied up to Form
T Two level in Hong Kong and was then taken to Macao to stay with T
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A A
B his father and stepmother for about a year. He never went back to B
school though.
C C
D 55. When he was 15 years old, he worked as a kitchen helper in Macao. D
After returning to Hong Kong in early 2014, he had worked
E E
intermittently as a kitchen helper and a warehouse attendant on a
F casual basis but remained indolent most of the time. F
G G
56. The defendant did not show much interest in schoolwork and
H started to smoke, play truant and being disrespectful to his teachers H
in school.
I I
J 57. Upon his return to Hong Kong from Macao, the defendant began J
mingling with delinquent youths all day. He admitted during his
K K
interview that he joined a youth gang professing to be affiliated
L
with ‘San Yee On’ triad society. Under peer pressure, he set out to L
M
settle old scores with a rival youth gang and as a result was arrested M
on 4th March 2015 for suspected blackmail, theft and inflicting
N N
grievous bodily harm.
O O
58. Whilst still on bail for the said suspected offences, D3 committed
P P
the present robbery. The defendant explained in the interview that
Q he committed the offence because he was short of money at the Q
time.
R R
S 59. Although the defendant claimed that he meant to turn over a new S
leaf, Officer Liu found it hard to tell if his remorse was genuine.
T T
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A A
B The defendant impressed him as yet to be determined in breaking B
off his undesirable way of life.
C C
D 60. The defendant’s paternal grandfather and father had repeatedly D
urged him to behave and to avoid his unscrupulous friends but to no
E E
avail. They admitted that they had no way to keep track of the
F defendant, and expected external intervention and a lengthy period F
of disciplinary training in a confined setting to do him good.
G G
H 61. It is Officer Liu’s recommendation that the defendant is suitable for H
detention in a Training Centre.
I I
J Sentence J
K 62. Robbery is a serious offence. The maximum sentence for robbery K
on conviction upon indictment is that of imprisonment for life.
L L
M 63. In arriving at the proper sentence, I must take into consideration the M
principles of sentencing and balance between rehabilitation,
N N
retribution, deterrence and prevention.
O O
P
64. There was no use of weapon in the robbery and as such the P
sentencing guidelines laid down in the case of R v Mo Kwong Sang,
Q Q
CACC 359/1981 do not apply.
R R
Sentence for D1
S S
65. D1 is 24 years old.
T T
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A A
B 66. In the case of HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563, the B
victim was a 17 year old female student on her way home at 5am.
C C
D2 kept a lookout at the entrance to the building as D1 entered the
D lobby and pushed the victim in the back as she waited for a lift D
while talking on her iPhone. D1 snatched the phone and fled.
E E
F 67. No weapon was used in the robbery and the victim was only F
confronted by one robber. The learned trial judge adopted a starting
G G
point of 3 years and 3 months’ imprisonment, reduced it for plea,
H and sentenced D1 and D2 each to 2 years and 2 months’ H
imprisonment.
I I
J 68. Their appeal against sentence was dismissed. The Court of Appeal J
found that although both defendants were of clear record, the
K K
starting point adopted was appropriate. The Court of Appeal agreed
L
with the trial judge’s finding that the circumstances of the offence L
M
were a “step up from a theft or snatching” in that D1 pushed the M
young female victim in the back whilst snatching her phone. The
N N
Court also noted that the victim, being a young woman returning
O home in the early hours of the morning, was vulnerable to this kind O
of cowardly attack.
P P
Q 69. In our present case, three robbers confronted the victim. He was Q
grabbed by the neck from behind and fell to the ground. The
R R
shoulder bag was then snatched from him. He suffered minor
S injuries. I find that the circumstances of our present case is slightly S
more serious than that of Ku Kwok Wai.
T T
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A A
B 70. Bearing in mind all the circumstances of the commission of the B
robbery, in relation to D1, I find that an immediate custodial
C C
sentence is necessary.
D D
71. Taking into consideration all the circumstances concerning the
E E
robbery, as well as D1’s background including his clear record, I
F find that a proper starting point is that of 3 and a half years’ F
imprisonment.
G G
H 72. I do not find there to be any mitigating factors other than D1’s H
guilty plea. I also do not find any aggravating factors against D1.
I I
J 73. D1 is therefore sentenced to 2 years and 4 months’ imprisonment J
upon granting him the customary one-third discount for his guilty
K K
plea.
L L
M
D2 and D3’s sentence M
74. D2 and D3 are 17 years old.
N N
O O
Training Centre as a sentencing option in robbery cases
P 75. In relation to D2 and D3, since robbery under section 10 of the P
Theft Ordinance is an excepted offence under Schedule 3 of the
Q Q
Criminal Procedure Ordinance, section 109A of that ordinance does
R not apply. In other words, imprisonment needs not be the last resort R
when dealing with D2 and D3. Be that as it may, I find that the
S S
following case provides a useful reference point when sentencing
T T
young robbers.
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A A
B 76. In the case of HKSAR v Wong Tsz-hin [2013] 1 HKC 239, the B
appellant was a 16 years old student and had used a knife to rob two
C C
victims on two different occasions, respectively of $300 cash, US$1
D and a mobile phone; and cash of $1,600 and a mobile phone. The D
appellant had previously made the acquaintance of the victims via
E E
an online gaming platform.
F F
77. The learned trial judge adopted a starting point of 6 years’
G G
imprisonment for each of the two charges. The final discounted
H sentence after the appellant’s guilty plea was that of 4 years and 2 H
months’ imprisonment. There the judge did not consider that any
I I
pre-sentence reports would serve any purpose and took the view
J that given the gravity of the crime, the only possible sentence was a J
sentence of imprisonment.
K K
L
78. When considering the appellant’s appeal against sentence, the L
M
Court of Appeal first of all pointed out that robbery is a very serious M
offence carrying a maximum sentence of life imprisonment. The
N N
Court also agreed with the trial judge’s observation that the
O offences in question were carefully planned and that the appellant O
had used a fake identity to entice the victims to a remote place in
P P
order to rob them. The appellant used a knife to threaten the victims,
Q and the victims must have been put through much fear. Q
R R
79. The Court however found that the case was not a very bad case of
S the type, pointing out that the appellant acted alone, had inflicted no S
injury to the victims and that the case only involved a small sum of
T T
cash and two mobile phones.
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A A
B 80. The Court further recognized that the appellant was only 16 at the B
time of the offences, had a clear record and had pleaded guilty to the
C C
charges. The appellant’s friends, teachers and school principal
D supported him. The Court of Appeal disagreed with the trial judge D
that significant terms of imprisonment was the only option in
E E
sentencing.
F F
81. The Court of Appeal then referred to the case of R v Cheung
G G
Wing-wai and others [1993] 2 HKCLR 139, where the Court
H expressly approved Training Centre Orders for two defendants who H
were 16 and 17 years old respectively, who had pleaded guilty to
I I
serious charges of robbery and handling stolen goods. There they
J targeted supermarkets and threatened staff and customers there with J
large knives and gagged and tied them. Senior staff were forced at
K K
knife point to open safes from which considerable sums of money
L L
were taken. Staff and customers also had their valuable and
M
documents of identity taken from them. M
N N
82. Training Centre Orders were made against the defendants in that
O case. O
P P
83. The Court in Kwok Tsz-hin noted that those defendants were under
Q the influence of two more mature men who were ex-police officers, Q
but also noted that the offences they had committed were much
R R
more serious than those committed by the appellant.
S S
84. The Court of Appeal eventually found that, “in view of the
T T
applicant’s young age and clear record and for the sake of the
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A A
B community, it is of importance that the applicant should be B
rehabilitated and a long term imprisonment may not be the best
C C
answer for his rehabilitation.”
D D
85. Reports were ordered to be prepared, the appeal against sentence
E E
was allowed, and Training Centre Orders in respect of both charges
F against the appellant were imposed. F
G G
86. In our present case, it is obvious that the robbery was less serious
H than that of either Wong Tsz-hin or Cheung Wing-wai. Both D2 and H
D3 entered a timely guilty plea. They are both of clear record. Most
I I
importantly, they were both just 17 years old at the time of the
J commission of the offence. They were not the mastermind of the J
robbery and were clearly influenced by this ‘Chan Sin Lung’
K K
character.
L L
M
87. As for their background, I find that D2 did better than D3 in front of M
the CSD officers who interviewed them, but that should not be a
N N
reason not to grant D3 an opportunity to rehabilitate, should that be
O the appropriate path to take. O
P P
88. Bearing in mind the circumstances of the commission of the
Q robbery and their personal background, and having considered the Q
detailed reports prepared on D2 and D3, I find that a period of
R R
disciplinary training coupled with statutory supervision would be
S beneficial to the defendants. S
T T
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A A
B 89. Despite the recommendation by the CSD Officer of D2’s suitability B
to be remanded in the Rehabilitation Centre, I find that the
C C
seriousness of the offence require a sterner sentence.
D D
90. Pursuant to section 4(1) of the Training Centres Ordinance,
E E
Cap.280, with D2 and D3 being 17 years old, and with myself being
F satisfied that it is in the interest of the community and that having F
regard to their character and previous conduct, and to the
G G
circumstances of the offence, it is expedient for their reformation
H and for the prevention of crime that they should undergo a period of H
training in a training centre, I order that D2 and D3 each be
I I
sentenced to detention in a training centre.
J J
K K
L L
(Douglas T.H .Yau)
District Judge
M M
N N
O O
P P
Q Q
R R
S S
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