區域法院（刑事）Deputy District Judge Bina Chainrai24/11/2016
DCCC859/2016
A A
B DCCC 859/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 859 OF 2016
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F HKSAR F
v
G G
WONG KA NGO, MAVERICK (D1)
H CHU MAN CHUNG (D2) H
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Before : Deputy District Judge Bina Chainrai in Court
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Date of Sentence : 24 November, 2016 at 12:06 p.m.
L Present : Ms. Irene Poon Oi-lin, Senior Public Prosecutor, for HKSAR / L
Director of Public Prosecutions
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Mr. Keith Fung Chun-wah, instructed by Messrs. Anthony
N Kwan & Co. (D.L.A.) for D1 & D2 N
Offences : Charges 1 : Assault with intent to rob [D1 & D2]
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Charge 2 : Robbery [D1 & D2]
Charges 3-12: Obtaining property by deception [D1]
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REASONS FOR SENTENCE
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1. The defendants (D1 and D2 on the indictment and so termed
C throughout) have each pleaded guilty before me to the charges they each C
face. D1 and D2 have each admitted Count 1 of assault with intent to rob,
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contrary to Section 10(2) of the Theft Ordinance, Cap. 210 and Count 2 of
E robbery, contrary to Section 10 of the Theft Ordinance, Cap. 210, where E
they are jointly charged, while D1 has admitted Counts 3 to 12 of obtaining
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property by deception, contrary to Section 17(1) of the Theft Ordinance,
G Cap. 210 G
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Facts
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2. The facts admitted by D1 and D2 reveal that at about 1.45 a.m.
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on 26 June, 2016, whilst Mr. Yeung Fan was sitting alone on a bench
K listening to music inside the Tai Po Waterfront Park, he noticed a group of K
young people consisting of 4 males and 1 female chatting loudly nearby.
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Suddenly he felt he had been struck from behind with a hard object. He
M turned around and saw one of the males from the group. Another male from M
the group punched him forcefully on his face. He struggled. 2 passers-by
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walked past. He heard one of his assailants saying to the other “Are we still
O going to do it or not?” The other shook his head, and then the two assailants O
fled the scene together. Mr. Yeung attended the A & E Department of the
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Alice Ho Miu Ling Nethersole Hospital - he was found to have sustained a
Q 1 cm laceration and tenderness to his scalp although an x-ray showed no Q
fracture. He received stitches for his wound and was discharged from the
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hospital on the same day (Count 1).
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3. At 3.13 a.m. on the same day, Mr. Lee Wing-nam was walking
C towards the bus terminus situated near the Tai Po Old Market Playground. C
He was on his way to work. He was suddenly pushed from behind and lost
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his balance. Someone pulled his rucksack which he was carrying on his
E back. After he fell to the ground, he felt that he had been pressed down E
tightly by more than one person. His head was touching the ground, whilst
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his eyes were covered by a hand. His rucksack containing the items listed in
G the particulars of Count 2 was snatched away. Someone inserted their hand G
into the pocket of his trousers and took away his mobile telephone – an
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I-phone 6S. The assailants kicked his thighs multiple times forcing him to
I disclose the password of his I-phone. Eventually, after Mr. Lee had I
disclosed his password, the group of people fled the scene (Count 2).
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During the robbery, Mr. Lee sustained injuries including swelling on his lip,
K abrasion to his elbow and laceration to his right knee. K
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M
4. One of the items in Mr. Lee’s wallet which was in his rucksack M
was a Hang Seng Bank “Enjoy” Visa Card in his name. The Visa Card was
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found to have been used to make purchases of cigarettes, drinks, etc. at
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various “7-Eleven” Convenience Stores situated in the Sheung Shui area in O
the early hours of 26 June, 2016, shortly after Mr. Lee was robbed (Counts
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3-12). D1 admitted that he had used the Visa Card stolen from Mr. Lee on
Q 26 June, 2016 during the robbery to purchase the items set out in the Q
particulars of Counts 3 to 12. The total value of the goods purchased using
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the stolen Visa Card is approximately HK$1,660.60.
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T 5. At around 11.55 p.m. on 27 June, 2016, PC 3769 was T
conducting an anti-crime patrol inside a cyber café and spotted D1acting
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furtively. D1 was intercepted and questioned, and admitted that he had
C robbed Mr. Lee on 26 June, 2016 and asked for a chance. He said he had C
committed the robbery alone and had already sold the I-phone. He had
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committed the offence because he was short of money. D1’s home was
E searched on 28 June, 2016 and 9 packets of cigarettes bought from E
“7-Eleven” Convenience Stores in the Sheung Shui area using the stolen
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Visa Card were recovered. In a subsequent video-recorded interview under
G caution, D1 admitted he was with friends including D2 in the early hours of G
26 June, 2016. He and D2 had picked up a brick from the roadside and used
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it to hit Mr. Yeung intending to rob him. He also admitted that he and D2
I had robbed Mr. Lee. After committing the robbery, the entire group I
boarded a taxi and left. He and D2 went to Sheung Shui where he used the
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stolen Visa Card at various “7-Eleven” Convenience Stores to purchase the
K items set out in the particulars of Counts 3 to 12. He eventually discarded K
the Visa Card in a rubbish bin. He and D2 took a taxi to Mongkok, where
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they sold the stolen I-phone for HK$800. The group then shared the
M HK$800 proceeds. M
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6. D2 was located and arrested on 29 July, 2016. During a O
video-recorded interview under caution in the presence of his father, D2
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admitted committing Counts 1 and 2. He admitted that he and D1 had
Q picked up a brick from the roadside and hit Mr. Yeung intending to rob him. Q
He admitted committing Count 2 with another male person and going with
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D1 to Mongkok later to sell Mr. Lee’s I-phone.
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7. I was satisfied beyond all reasonable doubt that the facts
C admitted by D1 and D2 supported the charges that they had each admitted, C
and accordingly I convicted D1 and D2 on the charges that they each faced.
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8. D1 was born on 1/2/1998. He was 18 years and 4 months old
F at the time of the offences and is now 18 years and 9 months old. D2 was F
born on 16/5/2001. He was 15 years and 1 month old at the time of the
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offences and is now 15 years and 6 months old.
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9. Counts 1 and 2 are excepted offences under the Criminal
J Procedure Ordinance, Cap. 221. I am aware of the case of Law Ka Kit, J
[2003] 2 HKC 178 concerning extreme youth as a mitigating factor in
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robbery cases. Although the circumstances of the robbery in that case are
L far more serious than in our present case, the principle regarding what age L
can be considered as extreme youth still applies. Stock JA said:
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“27. Yet, it has for long been recognized that
N “youth may pale into insignificance because of the N
magnitude or prevalence of the offence”: see Re
O Applications for Review of Sentence [1972] O
HKLR 370, 417. Cases of serious robbery fall
within the band of cases where youth is not a
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strong mitigating factor: see R v Chung Man Kit
[1990] 1 HKC 87; and Secretary for Justice CAAR
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Application for Review 4 of 2000. That is because
in such cases "the public interest must be served
R over and above the individual interests of the R
[accused] despite their youth": see R v Chan Chi
S Fai Cr App 59/83; and the commentary on offences S
by youth in Cross and Cheung 'Sentencing in Hong
T
Kong', pp. 480 et seq. It is also well established T
that extreme youth may, though it does not
necessarily, constitute strong mitigation. Where
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such strong mitigation may lead depends on the
case and all the circumstances, including the
C circumstances of the individual offender. What is C
"extreme youth" is not a matter of exact
D mathematics, although someone under the age of D
15, as was D2, falls within this category.”
E I find that neither D1 nor D2 fall within the category of ‘extreme youth’. E
F F
G 10. Section 109A of the Criminal Procedure Ordinance, Cap. 221, G
provides that no court shall sentence a person of or over the age of 16 years
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and under 21 years of age to imprisonment unless the court is of the opinion
I that no other method of dealing with such person is appropriate. Section I
11(2) of the Juvenile Offenders Ordinance, Cap. 226, provides that no
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young person shall be sentenced to imprisonment if he can suitably be dealt
K with in any other way. A ‘young person’ is defined as a person aged 14 K
years and under the age of 16 years. Although Counts 1 and 2 are excepted
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offences and therefore outside the ambit of Section 109A of the Criminal
M Procedure Ordinance, Cap. 221, Counts 3 to 12 are not. The Court in R. v. M
Chiang Sun-keung, [1997] 1 HKLRD 24, 29 said ‘it remains incumbent
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upon the courts to be wary and to exercise great care before they commit
O young offenders to prison’. D1 being over the age of 16 years and under the O
age of 21 years, and D2 being a ‘young person’ I adjourned sentence,
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calling for Background, Detention and Training Centre reports in respect of
Q each defendant, remanding both of them in custody, and warning them of Q
the likelihood of a custodial sentence. Mr. Fung, Counsel for both
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defendants indicated that he would reserve mitigation until the reports were
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available. When the matter resumed before me yesterday, the reports I had
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called for were available. After hearing further mitigation on behalf of each T
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defendant from Mr. Fung, I adjourned the matter until today to deliver
C sentence. C
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11. These reports are now before me and I have read them and
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taken the contents fully into consideration when deciding sentence. The
F contents have been explained by Counsel to each defendant and each F
through Counsel indicate they agree with the contents. Mr. Fung drew to
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my attention that in the Background Report of D2, there is a typing error in
H paragraph 8 – ‘D2’ in that paragraph should read as ‘D1’. I have also borne H
in mind all that has been urged upon me on behalf of each defendant as well
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as the contents of the various letters submitted in mitigation on behalf of
J D1. J
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L Previous Convictions L
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12. D1 has 2 previous convictions, one for attempted theft and the M
other for theft, both in 2013, when he was placed on probation.
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13. D2 has 1 previous conviction for theft. I was told that the
P nature of the theft was snatching. The offence was committed on 19/7/2016 P
and he was sentenced to the Detention Centre on 5/8/2016. He is currently
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still in the Detention Centre. The present offences that he has admitted
R were committed on 26 June, 2016, prior to the offence for which he is R
currently being detained at the Detention Centre. He had a clear record at
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the time of the present offences. In determining sentence for the present
T offences, I attached no weight to his previous record, and treated him as if T
he had a clear record.
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Further Mitigation
C 14. Counsel submitted that he had explained to both defendants C
the tariff for offences of robbery, that the norm is an immediate custodial
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sentence. He accepted too that Counts 1 and 2 are excepted offences, and
E that neither defendant were in the category of ‘extreme youth’. E
F F
G D1 G
H 15. I was informed that D1’s parents were in Court to show their H
support, as was his sworn mother. D1 had finally met his birth mother who
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had visited him while he has been in custody. Mr. Fung also submitted
J letters in mitigation from D1’s former employer Mr. Koon, who spoke well J
of D1 and indicated that he was prepared to continue to employ him, and
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also from D1’s sworn mother, who said she was willing to provide him with
L a home. L
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16. The reports before me in respect of D1 set out in great detail
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the background of D1. I do not intend to rehearse the contents again herein.
O From the Background Report, it is clear that D1’s family background is O
quite complex. His mother left the family in 1999 shortly after his birth in
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1998. He had had no contact with her since. D1 and his father moved to
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live with his paternal grandparents after his mother left. When D1 was 9,
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he and his father moved to live apart from the grandparents. D1 received R
residential care at the Shing Mun Springs Multi-purpose Rehabilitation
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Home of St. Stephen’s Society from October 2013 to March 2015. There
T was some improvement in his behavior. He was then discharged to return T
home. But he had a heated quarrel with his father in July 2015 and left
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home. He has been sharing a flat with a friend. He left school without
C finishing Form 3 in October, 2013. He has worked at various jobs – a month C
prior to his arrest, he was allegedly doing computer data entry work earning
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about $7,000 a month. D1’s relationship with his father was poor – his
E father was fully occupied with work but had also tried to render close E
supervision of D1 but in an ‘authoritative mode of parenting’, often ending
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up in quarrels. The mother claimed that she had no means to contact the
G father as he had moved away from the family’s original abode and had G
changed his telephone number. She had finally located D1 and his father
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with police assistance in August 2015. D1’s parents were formally divorced
I in December, 2015, with the father being granted custody of D1 and the I
mother being granted reasonable access. She had wished to meet D1 but by
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then he had already moved away and has had no contact with his father
K since July, 2015. D1 got acquainted with some undesirable peers in school K
and turned progressively wayward since May 2013, frequenting
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video-game and billiard centres and bars till late hours. He picked up bad
M habits such as smoking and occasional drinking. His father tried to M
intervene but to no avail. In the first interview with the Probation Officer,
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D1 was evasive in disclosing details of the present offences – he claimed to
O have forgotten his father’s address and telephone number. D1 was more O
forthcoming at the second interview, crying when talking about his poor
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relationship with his father. His father has also visited him whilst he has
Q been detained. On learning that his mother wanted to visit him, he cried Q
even more, expressing his desire for a mother’s care and concern which had
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been missing from his life. I am told his mother has seen him whilst he has
S been detained. D1’s parents are committed to give their support and S
encouragement to D1 and seek leniency on his behalf.
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17. The Interviewing Officer for the Detention and Training
C Centre Reports said that in the course of the interview D1 verbalized his C
remorse for committing the offences and stressed that he would not
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re-offend, that he would stay away from his former bad peers. He was
E willing to receive a long period of imprisonment but declined to be sent to E
the Detention or Training Centres. The Interviewing Officer opined that in
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order to help D1 develop more insight into his problems and cultivate his
G positive moral value as well as strengthen his law-abiding concept, a period G
of disciplinary training coupled with statutory supervision would be
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beneficial to D1. D1 was mentally and physically fit for detention in both
I the Detention Centre as well as the Training Centre. From the information I
available and after a general assessment of D1’s behavior and attitude while
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on remand, and taking into consideration his background, his triad
K affiliation and repeated criminal behavior, and the nature of the present K
offences, he considered the Training Centre more suitable as D1 will
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undergo a more comprehensive programme including educational and
M vocational training, character, value and life-skill development followed by M
a longer period of statutory supervision.
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D2
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18. Mr. Fung submitted that D2’s father was in Court to show his
Q support for his son. He was disappointed by D2’s offences, but was willing Q
to help him to rehabilitate.
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19. D2’s background is set out in great detail in the reports before
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me and I do not intend to rehearse the contents again here. Suffice to say he
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was born in China and came to Hong Kong with his mother for family
C reunion with his father in 2012. He lives with his father, his grandfather C
and younger brother at a public housing unit in Aberdeen. His twin brother
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suffers from mild grade mental retardation and autism and is a student at a
E special school and living at the Wah Oi Hostel. His mother could not adjust E
to living in Hong Kong and also had marital problems and returned to
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China in December, 2012. D2 dropped out of school in September 2015
G without finishing Form 1. He followed his father to work as a delivery G
worker but quit after one week. Since then, he did not take up any legal
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employment but participated in illegal activities. He received
I Comprehensive Social Security Assistance from 10/5/2013 but this ceased I
on 1/8/2016 when he was sentenced to the Detention Centre for another
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offence. Soon after moving to Hong Kong in 2012, D2 associated with
K triad peers. D2 was admitted to the Chak Yan Centre in March 2013. His K
mother visited him only a few times from March 2013 to July 2015 at the
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Chak Yan Centre. He was angry at his mother’s desertion and felt
M abandoned. He was hostile towards his father for not giving him adequate M
love and care. His relationship with his paternal grandfather was distant.
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The Probation Officer in the Background Report opined that D2 was an
O impulsive, stubborn and rebellious teenager with inadequate problem O
solving and close triad affiliation. He was hostile to his father for not giving
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him adequate parent’s care and love. His behavior deteriorated sharply and
Q he was repeatedly missing from home since September 2015. He failed to Q
observe the conditions of the Care or Protection Order that was made on
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2/12/2015 for 12 months despite repeated counseling. He continued his
S triad association and criminal activities. He started to take dangerous drugs S
in June 2016. He was light hearted about the serious legal consequences of
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his criminal conduct – he was arrested for another similar offence that he
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committed after the present ones, for which he was sentenced to the
C Detention Centre. Although he was now in the Detention Centre, he still C
had no remorse for his criminal activities and had little motivation to
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rehabilitate. His father and grandfather expressed difficulties in supervising
E him as he did not heed their advice. E
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20. The Officer who prepared the Detention and Training Centre
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Reports said that the supervising officer in charge of D2 in the Detention
H Centre said that D2 was able to tune in to disciplinary training and to make H
steady progress while undergoing training there. He had been promoted to
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Grade 2 on 24/10/2016. He showed a sense of remorse for his misdeed and
J determination to turn over a new leaf. During the training period, D2 had J
managed to conform to the centre regulations and incurred no disciplinary
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offence. He was co-operative when interviewed, he admitted his culpability
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but with little sense of remorse. He committed the present offences out of
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his weak law-abiding concept and his carefree attitude. He was an obstinate M
youngster who failed to realize he was highly susceptible to adverse
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influence from his triad peers. But since his sentence to the Detention
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Centre, he had learned a lesson and undertook to mend his ways and sought O
leniency. D2 was mentally and physically fit for detention in a Detention
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Centre or a Training Centre. From the information available and after a
Q general assessment of his behavior and attitude while undergoing training, Q
D2 was considered more suitable for detention in a Detention Centre.
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21. The maximum penalty for offences of robbery and assault
T with intent to rob is provided in Section 10(2) of the Theft Ordinance, Cap. T
210 – it is life imprisonment. For offences of obtaining property by
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deception, Section 17(1) of the Theft Ordinance, Cap. 210, provides a
C sentence of 10 years’ imprisonment upon conviction on indictment. C
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22. Sentencing guidelines for armed robberies cases were set in
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the case of Mo Kwong Sang v. R, [1981] HKLR 610 where Roberts, CJ,
F said at p. 611: F
G “We suggest that, in future, the appropriate sentence G
in an ordinary case of armed robbery, where the
H accused was carrying a knife or other dangerous H
weapon which he displayed to his victim should
normally be five years.
I I
If such a robbery also involves an invasion of private
J premises (which includes domestic and business J
premises and the common parts of premises such as
K lifts and staircases) we suggest that a sentence of six K
years would be appropriate.
L If any physical violence, which includes tying them up, L
is used on any of the victims, we suggest that a sentence
M of seven years should be considered. M
These suggested sentences should be increased if there
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are other aggravating factors. Among these, though the
list is not exhaustive, are invasion of domestic premises
O during the night; the presence of more than one person in O
the group of robbers; threats made to victims;
P ill-treatment of elderly persons and children; and a P
multiplicity of offences of a similar kind.
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These guidelines are intended to apply to those who are
convicted after a trial. Thus the suggested sentences
R should be reduced by such amount as the court may R
think appropriate for a plea of guilty.
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Nothing which we say, of course, should be construed as
inhibiting a court from adjusting these sentences to
T accord with the record, age or other personal T
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circumstances of the accused or from taking account of
the particular facts of the case before it.”
C C
D 23. In Mo Kwong Sang, the Court of Appeal made clear that by D
armed robbery, they refer to use of knives and other dangerous weapons but
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not to firearms. In Count 1, a brick was used to assault the victim. The
F defendants picked up the brick from the vicinity and used it to hit Mr. F
Yeung from behind on his head. It is only by the greatest good fortune that
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he was not more seriously injured.
H H
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24. In Secretary for Justice v. Ma Ping Wah [2000] 2 HKC 566, the
J Court of Appeal considered the appropriate sentence for robberies J
involving ‘head bashing’. In delivering his judgment, Stuart-Moore, V-P,
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said at page 574:-
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“In our judgment, the usual sentence to be imposed for
such robberies, following a contested trial, where it is
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established that a deliberate blow to the head with a
weapon capable of causing injury to the brain has been
N struck by the robber or culprit who is intent on robbery, N
should not be less than 8 years’ imprisonment. This is
O not, of course, a strait-jacket, and there may be some O
offences where a lesser penalty can be imposed
P
depending on all the circumstances. Equally, depending P
on how severely the victim is injured, there will be other
cases for which greatly increased sentences will be
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required.”
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25. In sentencing the defendants, I take into account the whole
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circumstances of the case, including its nature and the facts, the personal
T background of each defendant and the mitigation put forward on behalf of T
each defendant, as well as the contents of the various reports I have before
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me in respect of each defendant and the letters in mitigation submitted on
C behalf of D1. C
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26. These are serious offences. There are aggravating features
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here in respect of Counts 1 and 2. Force was used by at least two persons
F against each victim. In Count 1, the victim was hit with a hard object on his F
head and punched forcefully on his face and had to have stitches. In Count
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2, the victim was subjected to physical force. He was pushed and kicked
H repeatedly. The offences were in the early hours of the morning, and they H
were committed by more than one person. D1 then used the Visa card that
I I
was stolen during the robbery in Count 2 to purchase various items from
J various ‘7-Eleven’ Convenience Stores in the Sheung Shui area. J
K K
L 27. For a case like the present one, if not for the age of the L
defendants, imprisonment of a substantial term is appropriate. D1 is now
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aged 18 years, while D2 is now aged 15 years. Before sentence, I had
N adjourned the matter for Background, Detention and Training Centre N
Reports, which are now before me. I had advised each Defendant that all
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options of sentence remained open including imprisonment. The purpose
P of obtaining the reports was to facilitate the Court to know better the P
background of each defendant and the case. The Court is under no
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obligation to accept and follow the recommendation but, rather, is under a
R duty to impose the most appropriate sentence. All sentencing options R
remain open until a decision is made.
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28. In calling for the reports, my main consideration was the
C young ages of D1 and D2. D2, strictly speaking, does not have a criminal C
conviction record. Although D1 does not have an impeccable record, it is a
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relatively light one. In respect of Counts 1 and 2, assault with intent to rob
E and robbery respectively, they each played a vital role. But for the E
passers-by in Count 1, D1 and D2 would have completed their robbery of
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Mr. Yeung.
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H 29. In HKSAR v. Wong Chun Cheong, [2001] 4 HKCFAR 12, the H
Court of Final Appeal indicated that in determining the appropriate
I I
sentence for a young offender, it was necessary to have regard, inter alia,
J not only to the characteristics of the offender but also the circumstances of J
the offence.
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L L
30. In HKSAR v. Law Ka Kit, supra, where the applicants were
M M
aged 14 ½ years at the time of the offence and 15 years at the date of
N sentence, Stock JA said, “there are cogent considerations which militate N
against sentencing persons at this age to prison. One is naturally cognizant
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of the immaturity of youth though maturity will differ widely from offender
P to offender, the pressure and influences which can be brought to bear P
especially when one notices a youth committing offences in the company or
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upon the direction of others who are older, and of the desirability of
R rehabilitating young offenders in settings more conducive to rehabilitation R
than may result from long-term imprisonment.”
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31. The Court of Appeal reiterated in HKSAR v. Wu Yee Ki,
C CACC 513 of 2005, that robbery had long been recognized as an offence C
for which an immediate custodial sentence should be imposed despite the
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youth of the offender.
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F 32. I have given very serious thought as to whether the defendants F
should be sentenced to imprisonment in light of the seriousness of the
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offences. I do bear in mind the classical principles of sentencing and
H balance amongst the need for rehabilitation, retribution, deterrence and H
prevention. Whilst rehabilitation for a young offender is always an
I I
important consideration, and it also serves the interest of the community,
J the need for punishment of the offender and deterrence of others must be J
given due regard. The defendants would have been fully aware of the
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gravity of what each was doing and the risks that would be involved if
L apprehended. L
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N 33. I have also borne in mind the length of imprisonment each N
defendant is likely to receive had he been over 21. On the other hand, I
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cannot overlook their ages and the need for rehabilitation. Their relatively
P young ages, the relatively clear record of D1 and the clear record of D2 and P
their personal circumstances have played a determining role in determining
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sentence. I am of the view that they are both of them reformable.
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34. D1’s parents have indicated that they will render support –
T these proceedings have been a wakeup call not only for D1 but also for his T
parents. I am of the opinion that it will be in the best interests of the
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community and D1 himself that he be detained to receive rehabilitative
C training rather than to be imprisoned. The Training Centre has been C
recommended for D1. I am of the view that training in a training centre is
D D
expedient to the reformation of D1 and for the prevention of crime, having
E regard to his character and previous conduct and the circumstances of the E
offences that he has admitted. Having considered all these matters, I shall
F F
adopt the recommendation of Training Centre for D1 in respect of each of
G the charges that he has admitted, to be served concurrently. G
H H
35. In respect of D2, the recommendation is that he be sentenced to
I I
the Detention Centre in respect of the charges that he has admitted although
J he is mentally and physically fit for detention in a Detention Centre or a J
Training Centre and there are places available for him. The Court is not
K K
under an obligation to follow the recommendation stated in the report.
L L
M M
36. Cons, V-P, in delivering the judgment of the Court of Appeal in
N R. v. Wong Kwok-kin (D4), CACC 461/1985, said: N
O “22. A Training centre Order is not to be O
considered in preference to a Detention Centre
Order merely because the period of detention will be
P P
longer, as it needs to be from the nature of the
treatment to be given during the detention. The two
Q types of centre provide different forms of treatment Q
each designed for the particular needs of the
R individual offender. The triviality or seriousness of R
the offence, as we indicated earlier, is a factor to be
S taken into account, but it cannot be conclusive.” S
T T
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37. I have considered the objective as well as the regime and means
C of training in the different institutions of the Correctional Services C
Department, bearing in mind the seriousness of the present case and the role
D D
D2 played in it. I do not consider that an order to detain D2 in a Detention
E Centre is an appropriate order. Such treatment is not sufficient to reflect the E
seriousness of the offences that D2 has admitted. Nor do I consider that the
F F
type of training that is provided at the Detention Centre is apt for the
G rehabilitation of D2. I am of the view that training in a training centre G
would be expedient to the reformation of D2 and for the prevention of
H H
crime, having regard to his character and previous conduct and to the
I circumstances of the offences. I am satisfied in the interests of the I
community that he should be so detained for training. In the Training
J J
Centre, D2 will receive education and vocational training as well as
K character development training. In making this decision, I have considered K
all the circumstances of the case, including mitigation and the contents of
L L
the reports before me. I have also taken into account the possible length of
M training in a training centre, although it is not a predominant sentencing M
consideration and I am of the view that the possible length of deprivation of
N N
liberty at a Training Centre is not disproportionate in the circumstances of
O the present case. O
P P
Q 38. Based on the matters aforesaid, D2 is sentenced to be Q
detained in a Training Centre in respect of Counts 1 and 2, the sentences to
R R
be concurrent. The Detention Centre Order that D2 is currently serving is
S discharged. S
T T
Bina Chainrai
U
Deputy District Judge U
V V
DCCC859/2016 HKSAR v. WONG KA NGO, MAVERICK AND ANOTHER - LawHero
A A
B DCCC 859/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 859 OF 2016
E E
-----------------
F HKSAR F
v
G G
WONG KA NGO, MAVERICK (D1)
H CHU MAN CHUNG (D2) H
I I
-----------------
J J
Before : Deputy District Judge Bina Chainrai in Court
K K
Date of Sentence : 24 November, 2016 at 12:06 p.m.
L Present : Ms. Irene Poon Oi-lin, Senior Public Prosecutor, for HKSAR / L
Director of Public Prosecutions
M M
Mr. Keith Fung Chun-wah, instructed by Messrs. Anthony
N Kwan & Co. (D.L.A.) for D1 & D2 N
Offences : Charges 1 : Assault with intent to rob [D1 & D2]
O O
Charge 2 : Robbery [D1 & D2]
Charges 3-12: Obtaining property by deception [D1]
P P
Q Q
-------------------------------------------
R R
REASONS FOR SENTENCE
S
------------------------------------------- S
T T
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A A
B B
1. The defendants (D1 and D2 on the indictment and so termed
C throughout) have each pleaded guilty before me to the charges they each C
face. D1 and D2 have each admitted Count 1 of assault with intent to rob,
D D
contrary to Section 10(2) of the Theft Ordinance, Cap. 210 and Count 2 of
E robbery, contrary to Section 10 of the Theft Ordinance, Cap. 210, where E
they are jointly charged, while D1 has admitted Counts 3 to 12 of obtaining
F F
property by deception, contrary to Section 17(1) of the Theft Ordinance,
G Cap. 210 G
H H
Facts
I I
2. The facts admitted by D1 and D2 reveal that at about 1.45 a.m.
J J
on 26 June, 2016, whilst Mr. Yeung Fan was sitting alone on a bench
K listening to music inside the Tai Po Waterfront Park, he noticed a group of K
young people consisting of 4 males and 1 female chatting loudly nearby.
L L
Suddenly he felt he had been struck from behind with a hard object. He
M turned around and saw one of the males from the group. Another male from M
the group punched him forcefully on his face. He struggled. 2 passers-by
N N
walked past. He heard one of his assailants saying to the other “Are we still
O going to do it or not?” The other shook his head, and then the two assailants O
fled the scene together. Mr. Yeung attended the A & E Department of the
P P
Alice Ho Miu Ling Nethersole Hospital - he was found to have sustained a
Q 1 cm laceration and tenderness to his scalp although an x-ray showed no Q
fracture. He received stitches for his wound and was discharged from the
R R
hospital on the same day (Count 1).
S S
T T
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3. At 3.13 a.m. on the same day, Mr. Lee Wing-nam was walking
C towards the bus terminus situated near the Tai Po Old Market Playground. C
He was on his way to work. He was suddenly pushed from behind and lost
D D
his balance. Someone pulled his rucksack which he was carrying on his
E back. After he fell to the ground, he felt that he had been pressed down E
tightly by more than one person. His head was touching the ground, whilst
F F
his eyes were covered by a hand. His rucksack containing the items listed in
G the particulars of Count 2 was snatched away. Someone inserted their hand G
into the pocket of his trousers and took away his mobile telephone – an
H H
I-phone 6S. The assailants kicked his thighs multiple times forcing him to
I disclose the password of his I-phone. Eventually, after Mr. Lee had I
disclosed his password, the group of people fled the scene (Count 2).
J J
During the robbery, Mr. Lee sustained injuries including swelling on his lip,
K abrasion to his elbow and laceration to his right knee. K
L L
M
4. One of the items in Mr. Lee’s wallet which was in his rucksack M
was a Hang Seng Bank “Enjoy” Visa Card in his name. The Visa Card was
N N
found to have been used to make purchases of cigarettes, drinks, etc. at
O
various “7-Eleven” Convenience Stores situated in the Sheung Shui area in O
the early hours of 26 June, 2016, shortly after Mr. Lee was robbed (Counts
P P
3-12). D1 admitted that he had used the Visa Card stolen from Mr. Lee on
Q 26 June, 2016 during the robbery to purchase the items set out in the Q
particulars of Counts 3 to 12. The total value of the goods purchased using
R R
the stolen Visa Card is approximately HK$1,660.60.
S S
T 5. At around 11.55 p.m. on 27 June, 2016, PC 3769 was T
conducting an anti-crime patrol inside a cyber café and spotted D1acting
U U
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B B
furtively. D1 was intercepted and questioned, and admitted that he had
C robbed Mr. Lee on 26 June, 2016 and asked for a chance. He said he had C
committed the robbery alone and had already sold the I-phone. He had
D D
committed the offence because he was short of money. D1’s home was
E searched on 28 June, 2016 and 9 packets of cigarettes bought from E
“7-Eleven” Convenience Stores in the Sheung Shui area using the stolen
F F
Visa Card were recovered. In a subsequent video-recorded interview under
G caution, D1 admitted he was with friends including D2 in the early hours of G
26 June, 2016. He and D2 had picked up a brick from the roadside and used
H H
it to hit Mr. Yeung intending to rob him. He also admitted that he and D2
I had robbed Mr. Lee. After committing the robbery, the entire group I
boarded a taxi and left. He and D2 went to Sheung Shui where he used the
J J
stolen Visa Card at various “7-Eleven” Convenience Stores to purchase the
K items set out in the particulars of Counts 3 to 12. He eventually discarded K
the Visa Card in a rubbish bin. He and D2 took a taxi to Mongkok, where
L L
they sold the stolen I-phone for HK$800. The group then shared the
M HK$800 proceeds. M
N N
O
6. D2 was located and arrested on 29 July, 2016. During a O
video-recorded interview under caution in the presence of his father, D2
P P
admitted committing Counts 1 and 2. He admitted that he and D1 had
Q picked up a brick from the roadside and hit Mr. Yeung intending to rob him. Q
He admitted committing Count 2 with another male person and going with
R R
D1 to Mongkok later to sell Mr. Lee’s I-phone.
S S
T T
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7. I was satisfied beyond all reasonable doubt that the facts
C admitted by D1 and D2 supported the charges that they had each admitted, C
and accordingly I convicted D1 and D2 on the charges that they each faced.
D D
E E
8. D1 was born on 1/2/1998. He was 18 years and 4 months old
F at the time of the offences and is now 18 years and 9 months old. D2 was F
born on 16/5/2001. He was 15 years and 1 month old at the time of the
G G
offences and is now 15 years and 6 months old.
H H
I I
9. Counts 1 and 2 are excepted offences under the Criminal
J Procedure Ordinance, Cap. 221. I am aware of the case of Law Ka Kit, J
[2003] 2 HKC 178 concerning extreme youth as a mitigating factor in
K K
robbery cases. Although the circumstances of the robbery in that case are
L far more serious than in our present case, the principle regarding what age L
can be considered as extreme youth still applies. Stock JA said:
M M
“27. Yet, it has for long been recognized that
N “youth may pale into insignificance because of the N
magnitude or prevalence of the offence”: see Re
O Applications for Review of Sentence [1972] O
HKLR 370, 417. Cases of serious robbery fall
within the band of cases where youth is not a
P P
strong mitigating factor: see R v Chung Man Kit
[1990] 1 HKC 87; and Secretary for Justice CAAR
Q Q
Application for Review 4 of 2000. That is because
in such cases "the public interest must be served
R over and above the individual interests of the R
[accused] despite their youth": see R v Chan Chi
S Fai Cr App 59/83; and the commentary on offences S
by youth in Cross and Cheung 'Sentencing in Hong
T
Kong', pp. 480 et seq. It is also well established T
that extreme youth may, though it does not
necessarily, constitute strong mitigation. Where
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such strong mitigation may lead depends on the
case and all the circumstances, including the
C circumstances of the individual offender. What is C
"extreme youth" is not a matter of exact
D mathematics, although someone under the age of D
15, as was D2, falls within this category.”
E I find that neither D1 nor D2 fall within the category of ‘extreme youth’. E
F F
G 10. Section 109A of the Criminal Procedure Ordinance, Cap. 221, G
provides that no court shall sentence a person of or over the age of 16 years
H H
and under 21 years of age to imprisonment unless the court is of the opinion
I that no other method of dealing with such person is appropriate. Section I
11(2) of the Juvenile Offenders Ordinance, Cap. 226, provides that no
J J
young person shall be sentenced to imprisonment if he can suitably be dealt
K with in any other way. A ‘young person’ is defined as a person aged 14 K
years and under the age of 16 years. Although Counts 1 and 2 are excepted
L L
offences and therefore outside the ambit of Section 109A of the Criminal
M Procedure Ordinance, Cap. 221, Counts 3 to 12 are not. The Court in R. v. M
Chiang Sun-keung, [1997] 1 HKLRD 24, 29 said ‘it remains incumbent
N N
upon the courts to be wary and to exercise great care before they commit
O young offenders to prison’. D1 being over the age of 16 years and under the O
age of 21 years, and D2 being a ‘young person’ I adjourned sentence,
P P
calling for Background, Detention and Training Centre reports in respect of
Q each defendant, remanding both of them in custody, and warning them of Q
the likelihood of a custodial sentence. Mr. Fung, Counsel for both
R R
defendants indicated that he would reserve mitigation until the reports were
S S
available. When the matter resumed before me yesterday, the reports I had
T
called for were available. After hearing further mitigation on behalf of each T
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B B
defendant from Mr. Fung, I adjourned the matter until today to deliver
C sentence. C
D D
11. These reports are now before me and I have read them and
E E
taken the contents fully into consideration when deciding sentence. The
F contents have been explained by Counsel to each defendant and each F
through Counsel indicate they agree with the contents. Mr. Fung drew to
G G
my attention that in the Background Report of D2, there is a typing error in
H paragraph 8 – ‘D2’ in that paragraph should read as ‘D1’. I have also borne H
in mind all that has been urged upon me on behalf of each defendant as well
I I
as the contents of the various letters submitted in mitigation on behalf of
J D1. J
K K
L Previous Convictions L
M
12. D1 has 2 previous convictions, one for attempted theft and the M
other for theft, both in 2013, when he was placed on probation.
N N
O O
13. D2 has 1 previous conviction for theft. I was told that the
P nature of the theft was snatching. The offence was committed on 19/7/2016 P
and he was sentenced to the Detention Centre on 5/8/2016. He is currently
Q Q
still in the Detention Centre. The present offences that he has admitted
R were committed on 26 June, 2016, prior to the offence for which he is R
currently being detained at the Detention Centre. He had a clear record at
S S
the time of the present offences. In determining sentence for the present
T offences, I attached no weight to his previous record, and treated him as if T
he had a clear record.
U U
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Further Mitigation
C 14. Counsel submitted that he had explained to both defendants C
the tariff for offences of robbery, that the norm is an immediate custodial
D D
sentence. He accepted too that Counts 1 and 2 are excepted offences, and
E that neither defendant were in the category of ‘extreme youth’. E
F F
G D1 G
H 15. I was informed that D1’s parents were in Court to show their H
support, as was his sworn mother. D1 had finally met his birth mother who
I I
had visited him while he has been in custody. Mr. Fung also submitted
J letters in mitigation from D1’s former employer Mr. Koon, who spoke well J
of D1 and indicated that he was prepared to continue to employ him, and
K K
also from D1’s sworn mother, who said she was willing to provide him with
L a home. L
M M
16. The reports before me in respect of D1 set out in great detail
N N
the background of D1. I do not intend to rehearse the contents again herein.
O From the Background Report, it is clear that D1’s family background is O
quite complex. His mother left the family in 1999 shortly after his birth in
P P
1998. He had had no contact with her since. D1 and his father moved to
Q Q
live with his paternal grandparents after his mother left. When D1 was 9,
R
he and his father moved to live apart from the grandparents. D1 received R
residential care at the Shing Mun Springs Multi-purpose Rehabilitation
S S
Home of St. Stephen’s Society from October 2013 to March 2015. There
T was some improvement in his behavior. He was then discharged to return T
home. But he had a heated quarrel with his father in July 2015 and left
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home. He has been sharing a flat with a friend. He left school without
C finishing Form 3 in October, 2013. He has worked at various jobs – a month C
prior to his arrest, he was allegedly doing computer data entry work earning
D D
about $7,000 a month. D1’s relationship with his father was poor – his
E father was fully occupied with work but had also tried to render close E
supervision of D1 but in an ‘authoritative mode of parenting’, often ending
F F
up in quarrels. The mother claimed that she had no means to contact the
G father as he had moved away from the family’s original abode and had G
changed his telephone number. She had finally located D1 and his father
H H
with police assistance in August 2015. D1’s parents were formally divorced
I in December, 2015, with the father being granted custody of D1 and the I
mother being granted reasonable access. She had wished to meet D1 but by
J J
then he had already moved away and has had no contact with his father
K since July, 2015. D1 got acquainted with some undesirable peers in school K
and turned progressively wayward since May 2013, frequenting
L L
video-game and billiard centres and bars till late hours. He picked up bad
M habits such as smoking and occasional drinking. His father tried to M
intervene but to no avail. In the first interview with the Probation Officer,
N N
D1 was evasive in disclosing details of the present offences – he claimed to
O have forgotten his father’s address and telephone number. D1 was more O
forthcoming at the second interview, crying when talking about his poor
P P
relationship with his father. His father has also visited him whilst he has
Q been detained. On learning that his mother wanted to visit him, he cried Q
even more, expressing his desire for a mother’s care and concern which had
R R
been missing from his life. I am told his mother has seen him whilst he has
S been detained. D1’s parents are committed to give their support and S
encouragement to D1 and seek leniency on his behalf.
T T
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17. The Interviewing Officer for the Detention and Training
C Centre Reports said that in the course of the interview D1 verbalized his C
remorse for committing the offences and stressed that he would not
D D
re-offend, that he would stay away from his former bad peers. He was
E willing to receive a long period of imprisonment but declined to be sent to E
the Detention or Training Centres. The Interviewing Officer opined that in
F F
order to help D1 develop more insight into his problems and cultivate his
G positive moral value as well as strengthen his law-abiding concept, a period G
of disciplinary training coupled with statutory supervision would be
H H
beneficial to D1. D1 was mentally and physically fit for detention in both
I the Detention Centre as well as the Training Centre. From the information I
available and after a general assessment of D1’s behavior and attitude while
J J
on remand, and taking into consideration his background, his triad
K affiliation and repeated criminal behavior, and the nature of the present K
offences, he considered the Training Centre more suitable as D1 will
L L
undergo a more comprehensive programme including educational and
M vocational training, character, value and life-skill development followed by M
a longer period of statutory supervision.
N N
O O
D2
P P
18. Mr. Fung submitted that D2’s father was in Court to show his
Q support for his son. He was disappointed by D2’s offences, but was willing Q
to help him to rehabilitate.
R R
S S
19. D2’s background is set out in great detail in the reports before
T T
me and I do not intend to rehearse the contents again here. Suffice to say he
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was born in China and came to Hong Kong with his mother for family
C reunion with his father in 2012. He lives with his father, his grandfather C
and younger brother at a public housing unit in Aberdeen. His twin brother
D D
suffers from mild grade mental retardation and autism and is a student at a
E special school and living at the Wah Oi Hostel. His mother could not adjust E
to living in Hong Kong and also had marital problems and returned to
F F
China in December, 2012. D2 dropped out of school in September 2015
G without finishing Form 1. He followed his father to work as a delivery G
worker but quit after one week. Since then, he did not take up any legal
H H
employment but participated in illegal activities. He received
I Comprehensive Social Security Assistance from 10/5/2013 but this ceased I
on 1/8/2016 when he was sentenced to the Detention Centre for another
J J
offence. Soon after moving to Hong Kong in 2012, D2 associated with
K triad peers. D2 was admitted to the Chak Yan Centre in March 2013. His K
mother visited him only a few times from March 2013 to July 2015 at the
L L
Chak Yan Centre. He was angry at his mother’s desertion and felt
M abandoned. He was hostile towards his father for not giving him adequate M
love and care. His relationship with his paternal grandfather was distant.
N N
The Probation Officer in the Background Report opined that D2 was an
O impulsive, stubborn and rebellious teenager with inadequate problem O
solving and close triad affiliation. He was hostile to his father for not giving
P P
him adequate parent’s care and love. His behavior deteriorated sharply and
Q he was repeatedly missing from home since September 2015. He failed to Q
observe the conditions of the Care or Protection Order that was made on
R R
2/12/2015 for 12 months despite repeated counseling. He continued his
S triad association and criminal activities. He started to take dangerous drugs S
in June 2016. He was light hearted about the serious legal consequences of
T T
his criminal conduct – he was arrested for another similar offence that he
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committed after the present ones, for which he was sentenced to the
C Detention Centre. Although he was now in the Detention Centre, he still C
had no remorse for his criminal activities and had little motivation to
D D
rehabilitate. His father and grandfather expressed difficulties in supervising
E him as he did not heed their advice. E
F F
20. The Officer who prepared the Detention and Training Centre
G G
Reports said that the supervising officer in charge of D2 in the Detention
H Centre said that D2 was able to tune in to disciplinary training and to make H
steady progress while undergoing training there. He had been promoted to
I I
Grade 2 on 24/10/2016. He showed a sense of remorse for his misdeed and
J determination to turn over a new leaf. During the training period, D2 had J
managed to conform to the centre regulations and incurred no disciplinary
K K
offence. He was co-operative when interviewed, he admitted his culpability
L L
but with little sense of remorse. He committed the present offences out of
M
his weak law-abiding concept and his carefree attitude. He was an obstinate M
youngster who failed to realize he was highly susceptible to adverse
N N
influence from his triad peers. But since his sentence to the Detention
O
Centre, he had learned a lesson and undertook to mend his ways and sought O
leniency. D2 was mentally and physically fit for detention in a Detention
P P
Centre or a Training Centre. From the information available and after a
Q general assessment of his behavior and attitude while undergoing training, Q
D2 was considered more suitable for detention in a Detention Centre.
R R
S S
21. The maximum penalty for offences of robbery and assault
T with intent to rob is provided in Section 10(2) of the Theft Ordinance, Cap. T
210 – it is life imprisonment. For offences of obtaining property by
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deception, Section 17(1) of the Theft Ordinance, Cap. 210, provides a
C sentence of 10 years’ imprisonment upon conviction on indictment. C
D D
22. Sentencing guidelines for armed robberies cases were set in
E E
the case of Mo Kwong Sang v. R, [1981] HKLR 610 where Roberts, CJ,
F said at p. 611: F
G “We suggest that, in future, the appropriate sentence G
in an ordinary case of armed robbery, where the
H accused was carrying a knife or other dangerous H
weapon which he displayed to his victim should
normally be five years.
I I
If such a robbery also involves an invasion of private
J premises (which includes domestic and business J
premises and the common parts of premises such as
K lifts and staircases) we suggest that a sentence of six K
years would be appropriate.
L If any physical violence, which includes tying them up, L
is used on any of the victims, we suggest that a sentence
M of seven years should be considered. M
These suggested sentences should be increased if there
N N
are other aggravating factors. Among these, though the
list is not exhaustive, are invasion of domestic premises
O during the night; the presence of more than one person in O
the group of robbers; threats made to victims;
P ill-treatment of elderly persons and children; and a P
multiplicity of offences of a similar kind.
Q Q
These guidelines are intended to apply to those who are
convicted after a trial. Thus the suggested sentences
R should be reduced by such amount as the court may R
think appropriate for a plea of guilty.
S S
Nothing which we say, of course, should be construed as
inhibiting a court from adjusting these sentences to
T accord with the record, age or other personal T
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circumstances of the accused or from taking account of
the particular facts of the case before it.”
C C
D 23. In Mo Kwong Sang, the Court of Appeal made clear that by D
armed robbery, they refer to use of knives and other dangerous weapons but
E E
not to firearms. In Count 1, a brick was used to assault the victim. The
F defendants picked up the brick from the vicinity and used it to hit Mr. F
Yeung from behind on his head. It is only by the greatest good fortune that
G G
he was not more seriously injured.
H H
I I
24. In Secretary for Justice v. Ma Ping Wah [2000] 2 HKC 566, the
J Court of Appeal considered the appropriate sentence for robberies J
involving ‘head bashing’. In delivering his judgment, Stuart-Moore, V-P,
K K
said at page 574:-
L L
“In our judgment, the usual sentence to be imposed for
such robberies, following a contested trial, where it is
M M
established that a deliberate blow to the head with a
weapon capable of causing injury to the brain has been
N struck by the robber or culprit who is intent on robbery, N
should not be less than 8 years’ imprisonment. This is
O not, of course, a strait-jacket, and there may be some O
offences where a lesser penalty can be imposed
P
depending on all the circumstances. Equally, depending P
on how severely the victim is injured, there will be other
cases for which greatly increased sentences will be
Q Q
required.”
R R
25. In sentencing the defendants, I take into account the whole
S S
circumstances of the case, including its nature and the facts, the personal
T background of each defendant and the mitigation put forward on behalf of T
each defendant, as well as the contents of the various reports I have before
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me in respect of each defendant and the letters in mitigation submitted on
C behalf of D1. C
D D
26. These are serious offences. There are aggravating features
E E
here in respect of Counts 1 and 2. Force was used by at least two persons
F against each victim. In Count 1, the victim was hit with a hard object on his F
head and punched forcefully on his face and had to have stitches. In Count
G G
2, the victim was subjected to physical force. He was pushed and kicked
H repeatedly. The offences were in the early hours of the morning, and they H
were committed by more than one person. D1 then used the Visa card that
I I
was stolen during the robbery in Count 2 to purchase various items from
J various ‘7-Eleven’ Convenience Stores in the Sheung Shui area. J
K K
L 27. For a case like the present one, if not for the age of the L
defendants, imprisonment of a substantial term is appropriate. D1 is now
M M
aged 18 years, while D2 is now aged 15 years. Before sentence, I had
N adjourned the matter for Background, Detention and Training Centre N
Reports, which are now before me. I had advised each Defendant that all
O O
options of sentence remained open including imprisonment. The purpose
P of obtaining the reports was to facilitate the Court to know better the P
background of each defendant and the case. The Court is under no
Q Q
obligation to accept and follow the recommendation but, rather, is under a
R duty to impose the most appropriate sentence. All sentencing options R
remain open until a decision is made.
S S
T T
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28. In calling for the reports, my main consideration was the
C young ages of D1 and D2. D2, strictly speaking, does not have a criminal C
conviction record. Although D1 does not have an impeccable record, it is a
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relatively light one. In respect of Counts 1 and 2, assault with intent to rob
E and robbery respectively, they each played a vital role. But for the E
passers-by in Count 1, D1 and D2 would have completed their robbery of
F F
Mr. Yeung.
G G
H 29. In HKSAR v. Wong Chun Cheong, [2001] 4 HKCFAR 12, the H
Court of Final Appeal indicated that in determining the appropriate
I I
sentence for a young offender, it was necessary to have regard, inter alia,
J not only to the characteristics of the offender but also the circumstances of J
the offence.
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30. In HKSAR v. Law Ka Kit, supra, where the applicants were
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aged 14 ½ years at the time of the offence and 15 years at the date of
N sentence, Stock JA said, “there are cogent considerations which militate N
against sentencing persons at this age to prison. One is naturally cognizant
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of the immaturity of youth though maturity will differ widely from offender
P to offender, the pressure and influences which can be brought to bear P
especially when one notices a youth committing offences in the company or
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upon the direction of others who are older, and of the desirability of
R rehabilitating young offenders in settings more conducive to rehabilitation R
than may result from long-term imprisonment.”
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31. The Court of Appeal reiterated in HKSAR v. Wu Yee Ki,
C CACC 513 of 2005, that robbery had long been recognized as an offence C
for which an immediate custodial sentence should be imposed despite the
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youth of the offender.
E E
F 32. I have given very serious thought as to whether the defendants F
should be sentenced to imprisonment in light of the seriousness of the
G G
offences. I do bear in mind the classical principles of sentencing and
H balance amongst the need for rehabilitation, retribution, deterrence and H
prevention. Whilst rehabilitation for a young offender is always an
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important consideration, and it also serves the interest of the community,
J the need for punishment of the offender and deterrence of others must be J
given due regard. The defendants would have been fully aware of the
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gravity of what each was doing and the risks that would be involved if
L apprehended. L
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N 33. I have also borne in mind the length of imprisonment each N
defendant is likely to receive had he been over 21. On the other hand, I
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cannot overlook their ages and the need for rehabilitation. Their relatively
P young ages, the relatively clear record of D1 and the clear record of D2 and P
their personal circumstances have played a determining role in determining
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sentence. I am of the view that they are both of them reformable.
R R
S S
34. D1’s parents have indicated that they will render support –
T these proceedings have been a wakeup call not only for D1 but also for his T
parents. I am of the opinion that it will be in the best interests of the
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community and D1 himself that he be detained to receive rehabilitative
C training rather than to be imprisoned. The Training Centre has been C
recommended for D1. I am of the view that training in a training centre is
D D
expedient to the reformation of D1 and for the prevention of crime, having
E regard to his character and previous conduct and the circumstances of the E
offences that he has admitted. Having considered all these matters, I shall
F F
adopt the recommendation of Training Centre for D1 in respect of each of
G the charges that he has admitted, to be served concurrently. G
H H
35. In respect of D2, the recommendation is that he be sentenced to
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the Detention Centre in respect of the charges that he has admitted although
J he is mentally and physically fit for detention in a Detention Centre or a J
Training Centre and there are places available for him. The Court is not
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under an obligation to follow the recommendation stated in the report.
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36. Cons, V-P, in delivering the judgment of the Court of Appeal in
N R. v. Wong Kwok-kin (D4), CACC 461/1985, said: N
O “22. A Training centre Order is not to be O
considered in preference to a Detention Centre
Order merely because the period of detention will be
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longer, as it needs to be from the nature of the
treatment to be given during the detention. The two
Q types of centre provide different forms of treatment Q
each designed for the particular needs of the
R individual offender. The triviality or seriousness of R
the offence, as we indicated earlier, is a factor to be
S taken into account, but it cannot be conclusive.” S
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37. I have considered the objective as well as the regime and means
C of training in the different institutions of the Correctional Services C
Department, bearing in mind the seriousness of the present case and the role
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D2 played in it. I do not consider that an order to detain D2 in a Detention
E Centre is an appropriate order. Such treatment is not sufficient to reflect the E
seriousness of the offences that D2 has admitted. Nor do I consider that the
F F
type of training that is provided at the Detention Centre is apt for the
G rehabilitation of D2. I am of the view that training in a training centre G
would be expedient to the reformation of D2 and for the prevention of
H H
crime, having regard to his character and previous conduct and to the
I circumstances of the offences. I am satisfied in the interests of the I
community that he should be so detained for training. In the Training
J J
Centre, D2 will receive education and vocational training as well as
K character development training. In making this decision, I have considered K
all the circumstances of the case, including mitigation and the contents of
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the reports before me. I have also taken into account the possible length of
M training in a training centre, although it is not a predominant sentencing M
consideration and I am of the view that the possible length of deprivation of
N N
liberty at a Training Centre is not disproportionate in the circumstances of
O the present case. O
P P
Q 38. Based on the matters aforesaid, D2 is sentenced to be Q
detained in a Training Centre in respect of Counts 1 and 2, the sentences to
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be concurrent. The Detention Centre Order that D2 is currently serving is
S discharged. S
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Bina Chainrai
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Deputy District Judge U
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