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 739/2014)

____________

____________

_________________________

REASONS FOR JUDGMENT

_________________________

Hon Pang JA (giving the reasons for judgment of the court):

1.Before Judge Stanley Chan in the District Court, the appellant was D2 in a matter involving multiple defendants and multiple charges. Of those charges, she pleaded guilty to Charge 2 and Charge 4 – the only charges that she had to meet to satisfy the case against her, and was sentenced to be detained in a Rehabilitation Centre (4 February 2015). Aggrieved, the appellant applied for and was granted bail pending appeal (31 March 2015)[1] and thereafter, leave by the single judge to appeal against sentence (9 August 2015)[2]. This appeal we have heard and allowed with the order that the appellant’s sentence of Rehabilitation Centre be substituted with one of 18 months’ probation (17 November 2015). These are our reasons.

The charges

2.The original charge sheet contained three charges.  By an amendment made shortly before trial, a new Charge 2 and new Charge 3 were included as alternatives to Charge 1 to facilitate the defendants’ pleas:

Charge 1 (against all D1 to D5) 

Robbery

Charge 2 (against all D1 to D5) (alternative to Charge 1)

Assault Occasioning Actual Bodily Harm

Charge 3 (against all D1 to D5) (alternative to Charge 1)

Theft

Charge 4 (against all D1 to D5) 

Blackmail

Charge 5 (against D1 only)  

Claiming to be a Member of a Triad Society

3.In the result, all D1 to D5 pleaded guilty to Charge 2.  D1 and D5 also pleaded guilty to Charge 3.  D1, D2, D3 and D5 pleaded guilty to Charge 4 whilst Charge 4 as against D4 was left on the court file.  Also left on the court file were Charge 1 and Charge 5 as against the relevant defendants.

The facts

4.The appellant and X were cousins.  They were then aged 15 and 26 respectively.  Over some conversation, the appellant complained to D1 that X had had sexual relations with her, and a plan was hatched to lure X out so that X could be beaten up and taught a lesson.

5.The plan was carried out on the same evening (20 May 2014).  Claiming to be drunk, the appellant telephoned X and asked X to collect her at a certain podium.  Unsuspecting it to be a trap, X complied and was, at the said podium, confronted by D1 who accused him of having sex with the appellant.  This was done in the presence of D3, who came with D1, and the appellant, who merely stepped aside and did not leave the scene.

6.Notwithstanding his denials, D1 and D3 kept accusing X of “messing with the appellant”.  Later, when D4 and D5 arrived, and X failed to think of a way of “resolving the matter”, the four of them launched into an attack of X lasting two minutes. With the appellant looking on, they kept punching and kicking until X was knocked to the ground [Charge 2]. 

7.When the attack was over, D1 got hold of X’s wallet and took $400 from it [Charge 3].  Hinting that he was connected to the triads[Charge 5], D1 also demanded $10,000 from X to be paid over by midnight.  He threatened to cause X trouble if X failed to do so.

8.When X expressed difficulty with the proposed arrangement, D1 extended the deadline to the following day (21 May 2014) but at the same time increased his demand to $14,000.  He repeated his threats [Charge 4] and warned X not to go to the police.  It was only at this point that the appellant and all the other defendants left the podium.

9.Defiant, X did report the matter and on the pretext of bringing them the money, enticed D1 and the appellant to a restaurant where they were arrested.  Under caution, the appellant said, “Sorry, I should not have got someone to rob my cousin or blackmail my cousin”.  In a subsequent interview, she admitted to arranging with D1 to have X beaten up, and to split the $14,000 into equal shares with all the defendants.

10.Upon medical examination, X was found to be suffering from tenderness, mild bruising, mild redness and mild abrasion at his right-side ribs, back, nose and right forearm respectively.

Mitigation & Sentence

11.The judge recapitulated the appellant’s mitigation in his Reasons for Sentence:

“40. Counsel tendered five mitigation letters prepared by D2, D2’s parents, X and the school teacher for counselling. D2 said that she likes to study history and wants to be a kindergarten teacher. She regretted for what she had done and hoped that she could return to school as soon as possible.

41. D2’s mother said she did not supervise D2 closely and D2 was raised from a single family at the age of 2. Both D2’s parents pleaded for leniency from this court.

42. X in his letter said he has forgiven D2 who was under the bad influence of ‘unhealthy friends and peers’. The incident caused great impact on both families, and X would like to see D2 continuing her study and enjoying a healthy and happy childhood.

43. It was submitted that D2 has learnt a bitter lesson as she has been in remand for 21 days. D2 has improved her behaviour and would like to have the chance to continue her study. It was said a probation order should be considered.

12.He said he faced different recommendations but given the appellant’s role in the incident, he considered it appropriate to sentence her to Rehabilitation Centre:

“65. D2 is aged 15 and had a clear record. She is a Form 3 student. The reports showed that D2 regretted very much for committing the current offences and promised that she would never violate the law.

66. 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.

67. D2 pleaded guilty to the alternative count of AOABH (Charge 2) and blackmail (Charge 4). 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. As such, I will accept the recommendation of the report that D2 requires a period of disciplinary training with supervision.

68.  Accordingly, I send D2 to a Rehabilitation Centre.”

Other Defendants

13.For Charges 2, 3 and 4, D1 (aged 22) was sentenced to a total of 17 months’ imprisonment.  For Charges 2 and 4, D3 (aged 20) was sentenced to be detained in a Detention Centre.  For Charge 2, D4 (aged 21 and the only defendant to have previous convictions) was sentenced to 1½ months’ imprisonment.  For Charges 2, 3 and 4, D5 (aged 17) was sentenced to a total of 12 months’ imprisonment, suspended for 30 months[3]. 

Grounds of Appeal

14.Acting on behalf of the appellant, Mr McNamara’s grounds/submissions were that:

(a)  Although the judge called for a Rehabilitation Centre Suitability Report and a Probation Officer’s Report, he had not properly considered their contents.  He merely recited their recommendations and after making a reference to the appellant’s role, indicated that he would sentence her to Rehabilitation Centre.

(b)  In so doing, the judge had placed too much emphasis on the seriousness of the offence, and insufficient emphasis on the appellant’s reform and well-being.  It was reiterated that the appellant was aged 15 and very immature.

(c)  If the judge had properly considered the contents of the reports, he would have noticed the appellant’s post-offence improvements in behavior, and be persuaded to sentence her to 18 months’ probation, as was the recommendation of the probation officer.

Respondent’s Reply

15.In his equally short submissions, Mr Cheng, for the respondent, argued that the present case involved a well thought-out plan to cause physical harm and extort money.  That being the case, and taking into account her role in the incident, the appellant was, notwithstanding her age, correctly sentenced.  He cited to us two English decisions in which persons aged 16 and 18 were sentenced to detention in a young offenders’ institution for blackmail[4].

Discussion

16.The difficulty in dealing with young offenders is well known.  Unless the nature and/or circumstances of an offence dictate otherwise, the predisposition of the sentencing tribunal must be towards ensuring the reform and rehabilitation of the young person.  However, in cases that are less straightforward, such as when the facts are bad but the offender is of extreme or near extreme youth, and that he or she is also of previous good character, the need for a more subtle analysis of the competing interests is obvious.

17.Unfortunately, such subtlety of analysis is not to be found in the judge’s Reasons for Sentence.  In particular, there was no discussion on first, the circumstances that may have brought about the appellant’s perception that she had been taken advantage of by X and second, the benefit that an open but otherwise supervised environment may do to the appellant.  These are highly relevant factors because:

(a)  The appellant, who had a clear record, was, at the time of her sentence, aged only 15 years and 11 months (15 years and 3 months at the time of the offence).

(b)  In both the Probation Officer’s Report and Rehabilitation Centre Suitability Report, the appellant repeated her claim of having had sexual relations with X.  She said she hated X because immediately after breaking up with his then girlfriend in May 2014, X had tried to contact her again[5].  Other details were provided.

(c)  It was said in both of the above reports that tardy and unmotivated as she might have been, the appellant had, since her arrest for the present offence, improved behaviourally at home and at school[6].

18.Admittedly, what the appellant did was deplorable.  But given her young age, her previous good character and the background of the case which, although not proved, was consistently claimed, we are of the view that a sentence of detention was wrong in principle and/or manifestly excessive.  Quoting Chu JA in the judgment given on the bail application:

“[I]t 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 the cousin.”

19.It is also worth mentioning that as at the time of the bail application, the appellant had already spent some 2 months in custody; and that according to an updated Probation Officer’s Report[7], the appellant has continued to show signs of improvement in her behaviour. 

20.The two English decisions that Mr Cheng cited are on very different facts hence readily distinguishable.

Disposal

21.For the above reasons, we allowed the appellant’s appeal, set aside her original sentence of detention in a Rehabilitation Centre and replace it with one of 18 months’ probation with the special conditions that:

(a)  she shall study, work and reside as directed by the probation officer;

(b)  she shall observe home curfew from 9 pm to 6 am unless  with the prior approval of the probation officer; and

(c)  she shall participate in any community programmes and activities which, in the opinion of the probation officer, are conducive to her rehabilitation.   

Mr John Patrick McNamara, instructed by Fu & Cheng Solicitors, assigned by Legal Aid Department, for the appellant

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