HKSAR v. Wong Ka Lok and Others

DCCC 720/2015

CRIMINAL CASE NO. 720 OF 2015

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Reasons for Sentence

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1.The 3 defendants pleaded guilty to one joint charge of Robbery, contrary to section 10 of the Theft Ordinance, Cap.210.

2.At the time of sentence, D1, D2 and D3 are aged respectively 24, 17 and 17.

Summary of Facts

3.73 year old Mr. So was walking alone near the junction of On Fu Road and Po Yick Street in Tai Po at around 4:50pm on 22^nd May 2015 when the three defendants suddenly appeared and approached him from behind.

4.One of them grabbed his neck, causing him to fall to the ground. They then pressed him onto the ground and snatched his shoulder bag, which contained $100,000 cash and a mobile phone. The money was Mr. So’s entire life savings.

5.The defendants fled in different directions. Mr. So reported the matter to the police and was taken to the hospital. He suffered abrasions over both arms and elbows, redness over his forehead, left side of face and both knees.

6.Closed circuit television footages around the area where the robbery took place were collected and analysed by the police. Investigation eventually led to the arrest of D1 and D2 on 5^th June.

7.Under caution, D1 admitted to committing the robbery together with D2 and D3. D1 claimed that a ‘Chan Sin Lung’ was the mastermind.

8.Also under caution, D2 admitted to assaulting the victim of the robbery with D1, but denied snatching his belongings.

9.D3 and the said Chan Sin Lung were put on police wanted and watch lists.

10.D3 was arrested inside a flat in Tin Yan Estate in Tin Shui Wai on 4^th August 2015. Under caution, D3 admitted to robbery and also claimed that a Chan Sin Lung was the mastermind.

11.The three defendants all took part in video recorded interviews under caution.

D1’s VRI

12.D1 claimed in his VRI that his friend D3 asked if he was interested to earn some quick money in the afternoon of the day of the robbery. Upon D1 agreeing, he went to D3’s residence, where D3 told him that their mutual friend, Chan Sin Lung, was planning to rob an old man.

13.D1 then got changed, brought three masks and went to Tai Po Market area with D3 by taxi. They went to Po Yick Street where D1 met D2 for the first time.

14.D2 told D1 that the targeted old man was wearing a polo shirt. D1 then gave D2 and D3 each a mask. Shortly, Chan Sin Lung appeared and had a short conversation with D2 before he left.

15.When D2 spotted the target, i.e. Mr. So, all three of them dashed towards him.

16.D1 subdued the man onto the ground, D2 assaulted the man while D3 snatched away his shoulder bag. They then fled.

17.D1 fled into a nearby boutique and hid there before he went home by taxi. When home, D1 threw away the clothes he had worn during the robbery.

18.D1 later contacted D3 and Chan Sin Lung to ask for his share of the loot. Chan Sin Lung told him that they had stolen around $70,000 from the victim. Chan Sin Lung eventually deposited $2,000 into D1’s bank account. Bank transaction records show that a cash deposit of $2,000 was made into D1’s account at 9:59pm on 22^nd May 2015. D3 also gave D1 another $4,000 in cash the following day.

19.Of the $6,000, D1 said he had lent $600 to D2 and had spent the rest.

20.D1 provided the full name of D3 and Chan Sin Lung, as well as the mobile number of D2, D3 and Chan to the police.

D2’ VRI

21.D2 claimed in his VRI that it was D1 who called him and told him to go to a bar in the Tai Po Market area to assault someone.

22.When D2 arrived outside the bar, he saw D1 there with an unknown male (according to D1’s VRI, he met D2 for the first time that day).

23.Several minutes later, another unknown male arrived and took out a cap and two masks from his rucksack. D1 told D2 to put on the mask and cap. 

24.D2 followed D1 and D3 to Po Yick Street where they spotted the victim inside the park nearby.

25.When the victim was leaving the park a short while later, D2 claimed that D1 immediately put on his own mask and dashed towards the man and grabbed his neck from behind. D1 and the man then fell onto the ground during the struggle.

26.D2 admitted to assaulting the man’s forehead a few times, while D1 snatched the shoulder bag from him and then passed it onto D3.

27.D2 then fled and disposed of his mask and cap at a rear lane. The cap was later found by the police.

28.When D2 fled to Fu Shin Estate, he came across D3, who gave him a black T-shirt to wear. D2 put on the T-shirt and went home. He later threw away the T-shirt at a rubbish bin in the estate.

D3’s VRI

29.D3 in his VRI claimed that he received a phone call from Chan Sin Lung who asked D3 to go to the place where the robbery took place. There, Chan told D3 to rob a man by snatching the man’s shoulder bag. Chan told D3 that there was plenty of money inside the bag.

30.When D3 arrived at the location, he saw D1 and D2 who were already wearing masks. The three of them then waited for the victim to leave the nearby park.

31.After a short while, D3 saw the target leaving the park. The three of them then dashed towards the man and punched him in the abdomen a few times. Both D3 and the man fell to the ground during the struggle.

32.After D3 snatched the man’s shoulder bag away, the three of them fled. D3 fled to the Hog Kong Railway Museum, where he made a phone call to Chan Sin Lung.

33.Chan Sin Lung later appear and took away the snatched shoulder bag and gave around $12,000-$13,000 to D3 as a reward.

34.D3 later gave have of that reward to D1 and had since spent the balance.

Previous convictions

35.All three defendants are of previously clear record.

Mitigation

36.A background report; Rehabilitation, Detention and Training Centre reports; and a Training Centre report were ordered to be prepared on D1, D2 and D3 respectively.

Factors to be considered that are common to all three defendants’ commission of the offence

37.The robbery was planned and organized. There were three of them together committing the offence. The victim was a 73 year old man. They had robbed the victim of his life savings.  Masks were brought along by D1 and used by all three defendants to hide their faces during the robbery, no doubt to conceal their identity.

38.On the other hand, all three defendants are of previously clear record at the time of their commission of the present offence. No weapons were used in the robbery.

39.It is fortunate that the victim did not suffer serious injuries, because given his age, a simple fall to the ground can cause a lot of damage or even prove fatal.

40.I note that there are material difference between the three defendants’ account of the robbery made in their VRIs. I find however that the differences would not affect their individual culpability in the commission of the offence for the following reasons.

41.In relation to D1, he knew before arriving at the scene that he was going to take part in a robbery with others.

42.In relation to D2, although he did not admit to knowing that they were to take the money from the man, D2 did admit to the summary of facts that was read out to him in open court after he entered his guilty plea to robbery. At paragraph 14 of the facts, D2 specifically admitted that, at the relevant time, he, D1 and D3 together with Chan had robbed PW1, the victim Mr. So.

43.In relation to D3, he had already been told by Chan that they were to rob a man by snatching his shoulder bag and was also told that there was plenty of money inside.

44.Based on their own admissions, the defendants were all ‘in it together’ on the robbery, and each is responsible for the others’ acts.

45.There is, however, no evidence to suggest that the defendants are the masterminds of the robbery. It would appear that a ‘Chan Sin Lung’ was the person who planned and organized the robbery and had directed the defendants to the location where he knew the victim would be. It can also be inferred that this Chan Sin Lung knew about the victim’s habit of carrying his life savings on his person, since according to D3, Chan had told him that there was plenty of money inside the shoulder bag.

46.None of the stolen money had been recovered. There has been no offer of restitution from any of the defendants.

Individual considerations

D1

47.D1 is 24 years old. He was the one who had brought the masks for use in the robbery and was given a total of $6,000 by Chan and D3 after the robbery.

48.A background report was prepared on the defendant prior to sentence. According to the report, the defendant had good family relationship but mingled with the wrong people, leading to the commission of the present offence out of his greed for ‘fast money’.

49.There are no special mitigating circumstances in relation to D1 apart from his guilty plea.

D2

50.D2 is 17 years old. According to the reports ordered to be prepared on him, the defendant was polite but reserved when being interviewed. The defendant’s mother showed deep concern for him. The defendant’s mother said he had all along behaved very well at home and in school. It was only when he was in Form Six that he was influenced by some bad peers. She promises to keep an eye on him and to help him get back on the right track.

51.Since the present incident, the defendant had cut off association with his triad-linked peers. Although he did enrol in a course in September 2015, he quit just two months later and started to work as a part-time air-conditioner repair apprentice. He also quit that job in December.

52.The Medical Officer confirmed that D2 is medically unfit for detention in a Detention Centre because of Type I Obesity. It is the opinion of Officer Luk (Rehabilitation Unit 1/ Assessment) that, in view of his weak self-control and law abiding concept, a period of disciplinary training coupled with statutory supervision would be beneficial to his reform. Officer Luk recommended that D2 is suitable for detention in a Rehabilitation Centre. Space is, however, available in both the Rehabilitation Centre and the Training Centre.

53.D2 also submitted a bundle in mitigation, which contained his achievements in school as well as proof of his involvement in community service work. There are also various letters in mitigation written on behalf of the defendant. They generally speak to the good nature of the defendant and that he was probably led astray by undesirable peers in the commission of the present offence.

D3

54.D3 is 17 years old. His parents divorced and he grew up under the care of his paternal grandparents. The defendant studied up to Form Two level in Hong Kong and was then taken to Macao to stay with his father and stepmother for about a year. He never went back to school though.

55.When he was 15 years old, he worked as a kitchen helper in Macao. After returning to Hong Kong in early 2014, he had worked intermittently as a kitchen helper and a warehouse attendant on a casual basis but remained indolent most of the time.

56.The defendant did not show much interest in schoolwork and started to smoke, play truant and being disrespectful to his teachers in school.

57.Upon his return to Hong Kong from Macao, the defendant began mingling with delinquent youths all day. He admitted during his interview that he joined a youth gang professing to be affiliated with ‘San Yee On’ triad society. Under peer pressure, he set out to settle old scores with a rival youth gang and as a result was arrested on 4^th March 2015 for suspected blackmail, theft and inflicting grievous bodily harm.

58.Whilst still on bail for the said suspected offences, D3 committed the present robbery. The defendant explained in the interview that he committed the offence because he was short of money at the time.

59.Although the defendant claimed that he meant to turn over a new leaf, Officer Liu found it hard to tell if his remorse was genuine. The defendant impressed him as yet to be determined in breaking off his undesirable way of life.

60.The defendant’s paternal grandfather and father had repeatedly urged him to behave and to avoid his unscrupulous friends but to no avail. They admitted that they had no way to keep track of the defendant, and expected external intervention and a lengthy period of disciplinary training in a confined setting to do him good.

61.It is Officer Liu’s recommendation that the defendant is suitable for detention in a Training Centre. 

Sentence

62.Robbery is a serious offence. The maximum sentence for robbery on conviction upon indictment is that of imprisonment for life.

63.In arriving at the proper sentence, I must take into consideration the principles of sentencing and balance between rehabilitation, retribution, deterrence and prevention.

64.There was no use of weapon in the robbery and as such the sentencing guidelines laid down in the case of R v Mo Kwong Sang, CACC 359/1981 do not apply.

Sentence for D1

65.D1 is 24 years old.

66.In the case of HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563, the victim was a 17 year old female student on her way home at 5am. D2 kept a lookout at the entrance to the building as D1 entered the lobby and pushed the victim in the back as she waited for a lift while talking on her iPhone. D1 snatched the phone and fled.

67.No weapon was used in the robbery and the victim was only confronted by one robber. The learned trial judge adopted a starting point of 3 years and 3 months’ imprisonment, reduced it for plea, and sentenced D1 and D2 each to 2 years and 2 months’ imprisonment.

68.Their appeal against sentence was dismissed. The Court of Appeal found that although both defendants were of clear record, the starting point adopted was appropriate. The Court of Appeal agreed with the trial judge’s finding that the circumstances of the offence were a “step up from a theft or snatching” in that D1 pushed the young female victim in the back whilst snatching her phone. The Court also noted that the victim, being a young woman returning home in the early hours of the morning, was vulnerable to this kind of cowardly attack.

69.In our present case, three robbers confronted the victim. He was grabbed by the neck from behind and fell to the ground. The shoulder bag was then snatched from him. He suffered minor injuries. I find that the circumstances of our present case is slightly more serious than that of Ku Kwok Wai.

70.Bearing in mind all the circumstances of the commission of the robbery, in relation to D1, I find that an immediate custodial sentence is necessary.

71.Taking into consideration all the circumstances concerning the robbery, as well as D1’s background including his clear record, I find that a proper starting point is that of 3 and a half years’ imprisonment.

72.I do not find there to be any mitigating factors other than D1’s guilty plea. I also do not find any aggravating factors against D1.

73.D1 is therefore sentenced to 2 years and 4 months’ imprisonment upon granting him the customary one-third discount for his guilty plea.

D2 and D3’s sentence

74.D2 and D3 are 17 years old.

Training Centre as a sentencing option in robbery cases

75.In relation to D2 and D3, since robbery under section 10 of the Theft Ordinance is an excepted offence under Schedule 3 of the Criminal Procedure Ordinance, section 109A of that ordinance does not apply. In other words, imprisonment needs not be the last resort when dealing with D2 and D3. Be that as it may, I find that the following case provides a useful reference point when sentencing young robbers.

76.In the case of HKSAR v Wong Tsz-hin [2013] 1 HKC 239, the appellant was a 16 years old student and had used a knife to rob two victims on two different occasions, respectively of $300 cash, US$1 and a mobile phone; and cash of $1,600 and a mobile phone. The appellant had previously made the acquaintance of the victims via an online gaming platform.

77.The learned trial judge adopted a starting point of 6 years’ imprisonment for each of the two charges. The final discounted sentence after the appellant’s guilty plea was that of 4 years and 2 months’ imprisonment. There the judge did not consider that any pre-sentence reports would serve any purpose and took the view that given the gravity of the crime, the only possible sentence was a sentence of imprisonment.

78.When considering the appellant’s appeal against sentence, the Court of Appeal first of all pointed out that robbery is a very serious offence carrying a maximum sentence of life imprisonment. The Court also agreed with the trial judge’s observation that the offences in question were carefully planned and that the appellant had used a fake identity to entice the victims to a remote place in order to rob them. The appellant used a knife to threaten the victims, and the victims must have been put through much fear.

79.The Court however found that the case was not a very bad case of the type, pointing out that the appellant acted alone, had inflicted no injury to the victims and that the case only involved a small sum of cash and two mobile phones.

80.The Court further recognized that the appellant was only 16 at the time of the offences, had a clear record and had pleaded guilty to the charges. The appellant’s friends, teachers and school principal supported him. The Court of Appeal disagreed with the trial judge that significant terms of imprisonment was the only option in sentencing.

81.The Court of Appeal then referred to the case of R v Cheung Wing-wai and others [1993] 2 HKCLR 139, where the Court expressly approved Training Centre Orders for two defendants who were 16 and 17 years old respectively, who had pleaded guilty to serious charges of robbery and handling stolen goods. There they targeted supermarkets and threatened staff and customers there with large knives and gagged and tied them. Senior staff were forced at knife point to open safes from which considerable sums of money were taken. Staff and customers also had their valuable and documents of identity taken from them.

82.Training Centre Orders were made against the defendants in that case.

83.The Court in Kwok Tsz-hin noted that those defendants were under the influence of two more mature men who were ex-police officers, but also noted that the offences they had committed were much more serious than those committed by the appellant.

84.The Court of Appeal eventually found that, “in view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.”

85.Reports were ordered to be prepared, the appeal against sentence was allowed, and Training Centre Orders in respect of both charges against the appellant were imposed.

86.In our present case, it is obvious that the robbery was less serious than that of either Wong Tsz-hin or Cheung Wing-wai. Both D2 and D3 entered a timely guilty plea. They are both of clear record. Most importantly, they were both just 17 years old at the time of the commission of the offence. They were not the mastermind of the robbery and were clearly influenced by this ‘Chan Sin Lung’ character.

87.As for their background, I find that D2 did better than D3 in front of the CSD officers who interviewed them, but that should not be a reason not to grant D3 an opportunity to rehabilitate, should that be the appropriate path to take.

88.Bearing in mind the circumstances of the commission of the robbery and their personal background, and having considered the detailed reports prepared on D2 and D3, I find that a period of disciplinary training coupled with statutory supervision would be beneficial to the defendants.

89.Despite the recommendation by the CSD Officer of D2’s suitability to be remanded in the Rehabilitation Centre, I find that the seriousness of the offence require a sterner sentence.

90.Pursuant to section 4(1) of the Training Centres Ordinance, Cap.280, with D2 and D3 being 17 years old, and with myself being satisfied that it is in the interest of the community and that having regard to their character and previous conduct, and to the circumstances of the offence, it is expedient for their reformation and for the prevention of crime that they should undergo a period of training in a training centre, I order that D2 and D3 each be sentenced to detention in a training centre.