HKSAR v. Sze Hoi Yan

CACC 56/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2015

(ON APPEAL FROM DCCC NO. 739 OF 2014)

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JUDGMENT
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1.The applicant, who was the 2^nd defendant in the lower court and described by the judge as D2, seeks leave to appeal against the sentence that she be detained in a Rehabilitation Centre imposed on her on 4 February 2015 by District Court Judge Stanley Chan following her pleas of guilty to two charges, which arose out of the same incidents in respect of the same victim, described as Mr X that occurred on the evening of 20 May 2014. The applicant was charged with committing those offences together with four co-accuseds. By Charge 2, the applicant was convicted, together with her four co-accuseds, of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212. By Charge 4 the applicant was convicted, together with the 1^st, 3^rd and 5^th defendants, with the blackmail of Mr X, namely making an unwarranted demand with menaces of him for the payment of $14,000, contrary to section 23(1) and (3) of the Theft Ordinance.

Sentences

2.The 2^nd applicant was ordered to be detained in a Rehabilitation Centre on each of Charges 2 and 4.

The facts

3.Mr X was subjected to the assault, the theft and the blackmail demand with menaces on the evening of 20 May 2014 at the podium, 4^th floor, Fu Cheong Estate, Sham Shui Po.  He had been lured there by his 15 year old cousin, the applicant.  Earlier, having complained to the 1^st defendant that Mr X had sex with her on several occasions, the applicant was asked to arrange to meet Mr X, so that he could be beaten up and taught a lesson.  She did so by telephoning Mr X telling him that she was drunk and asking him for his assistance to take her home.  On his arrival, Mr X was confronted by the 1^st defendant who, in the presence of the applicant and the 3^rd defendant accused him of having sex with the applicant.  They were joined by the 4^th and 5^th defendants.  Notwithstanding his denials, those allegations were repeated until the 1^st, 4^th and 5^th defendants surrounded Mr X punching and kicking him, so that he fell to the ground.  It was accepted that the 3^rd defendant was present and lent his weight to the assault, albeit that he did not land a blow.  The applicant was present throughout.

4.The 1^st defendant took $400 from Mr  X’s wallet and demanded the payment of $10,000 before midnight to resolve the matter, threatening that he had Triad connections and would cause trouble to Mr X and his family, if payment was not made.  In face of Mr X’s response that he could not raise that amount of money that day, the 1^st defendant demanded payment of $14,000 the following day, reiterating his threat in the event of non-payment.

5.Mr X reported the events to the police.  A medical examination, Mr X was found to have mild bruising on his back, mild redness of the nose and a mild abrasion on his right forearm.

6.On the following day, 21 May 2014, having spoken to the applicant by telephone and having made an arrangement to hand over the money, Mr X went to a restaurant in Fu Shin Estate.  The 1^st defendant and the applicant were arrested outside the restaurant, having been pointed out by Mr  X.  The 3^rd defendant was arrested nearby.  The 4^th and 5^th defendants surrendered to the police on 22 May 2014.

Reasons for sentence

The applicant

7.Having acknowledged that the applicant was 15 years of age and had a “clear record”, the judge said of her role in the commission of the offences:[1]

“ It is obvious that the whole incident was triggered by D2’s allegations against X. She started the saga and enlisted the assistance from D1. D2’s role in this incident is significant.”

8.Of the probation officer’s and the Rehabilitation Centre/Training Centre suitability reports, for which he had called, the judge said:[2]

“ It was recommended that in order to strengthen D2’s law-abiding concept, a period of disciplinary training coupled with statutory supervision would be beneficial to D2. It was recommended to send D2 to a Rehabilitation Centre. On the other hand, the probation report stated that a period of 18 months’ probation supervision is recommended.”

9.In the result, the judge said:[3]

“…I will accept the recommendation of the report that D2 requires a period of disciplinary training with supervision.”

The sentences imposed on the other defendants

10.All the other defendants, save for the 4^th defendant had a “clear record”.  The 1^st defendant, who was 22 years of age, was sentenced to a total of 17 months’ imprisonment having pleaded guilty to three charges, namely assault occasioning actual bodily harm, theft and blackmail.  The 3^rd defendant, who was 20 years of age, was ordered to be detained in a Detention Centre, having pleaded guilty to two charges, namely assault occasioning actual bodily harm and blackmail.  Finally, the 5^th defendant, who was 17 years of age, was sentenced to a total of 12 months’ imprisonment suspended for 30 months, having pleaded guilty to three charges, namely assault occasioning actual bodily harm, theft and blackmail.

11.The 4^th defendant, who was 21 years of age, had previous criminal convictions, including one for unlawfully trafficking in dangerous drugs, for which in 2011 he had been ordered to be detained in a Training Centre, and another for an offence of assault occasioning actual bodily harm, committed in November 2013, for which he had been given a sentence of 2 months’ imprisonment suspended for 12 month in July 2014.  He was sentenced to 1½ months’ imprisonment, having pleaded guilty to a single charge of assault occasioning actual bodily harm.

Ground of appeal against sentence

The applicant

12.In the grounds of appeal against sentence and advanced by Mr McNamara, on behalf of the applicant, it was submitted that in determining to order that the applicant be detained in a Rehabilitation Centre, the judge failed to have proper regard to the recommendation in the probation report that she be made the subject of a probation order.  In his written submissions, he contended that the judge had placed too much emphasis on the seriousness of the offence and insufficient emphasis on the future well-being of the applicant, a very young and immature girl.  He invited the court to have regard to the observations of Beeson J in her judgment in HKSAR v Tsang Lok Fu & Another, a magisterial appeal, in which the magistrate had made an order for the detention of two appellants in a Rehabilitation Centre without having called for the preparation of a probation report.  Ordering the preparation of such a report, Beeson J said:[4]

“ I agree the robbery is a serious offence and respect the magistrate’s view that it is prevalent in that area. Nevertheless, given the ages and the particular circumstances of this robbery it appears desirable that the Appellants with their families should be given the opportunity to show they can work to improve their own behaviour and working history.”

The respondent

13.For the respondent Mr Raymond Cheng opposed the grant of leave to appeal against sentence to the applicant.  He submitted that, given their respective roles in the commission of the offences, her culpability was no less than that of the 1^st defendant.  However, he acknowledged that their respective ages, namely 15 and 22 years, was the “only consideration that could differentiate her case from that of D1.”  He submitted that it was clear that the judge had considered the option of ordering her to be the subject of a probation order, but had decided to accept the recommendation that she required a period of “disciplinary training with supervision”, as a result of which he had ordered her to be detained in a Rehabilitation Centre.[5]

A consideration of the submissions

The applicant

14.On 31 March 2015, Chu JA granted the 2^nd applicant bail pending the hearing of her appeal against sentence.  She did so, having noted that the period of detention in a Rehabilitation Centre ranges between 3 and 9 months.  In particular, she said:[6]

“ I accepted that the applicant would have completed a substantial part of the detention order by that time only her leave to appeal application is heard.”

15.Chu JA went on to say that the judge was correct to take a serious view of the case and to consider that “the whole incident was brought about by the applicant and her wish to teach X a lesson.”  However, in determining that the 2^nd applicant had a reasonable prospect of success in an application for leave to appeal against sentence, she concluded by saying:[7]

“ …it should be borne in mind that the applicant was only a little over 15 at the time, had a clear record, and that the incident grew out of a relationship she had with her cousin. The probation officer’s report also disclosed that the applicant had shown some remorse and had made improvements both in school and at home after her arrest for the case in question, and that her parents, though separate, are both caring and supportive.”

Conclusion

16.For my own part, I am satisfied that the grounds of appeal advanced in behalf of the applicant are reasonably arguable and I grant leave to appeal against sentence.

17.I order that the hearing of the appeal is to be expedited.

Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

Mr John McNamara, instructed by Fu and Cheng, assigned by Director of Legal Aid, for the 2^nd applicant

[1] Reasons for Sentence; page 25, paragraph 67.

[2] Reasons for Sentence; page 25, paragraph 66.

[3] Reasons for Sentence; page 25, paragraph 67.

[4] HKSAR v Tsang LokFu & Another (HCMA 944/2003; unreported, 24 December 2003).

[5] Reasons for Sentence; page 25, paragraph 67.

[6] Decision: Chu JA; 31 March 2015, at paragraph 14.

[7] Decision: Chu JA; 31 March 2015, at paragraph 15.