HKSAR v. Fung Mun Ting

DCCC 752/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 752 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to Charge 2, robbery, contrary to section 10 of the Theft Ordinance. In this case, there were two charges and five defendants. This defendant, the 2nd defendant, defendant here today is the youngest of the five.

2.On 14 June this year, the victim was jumped by four to five males, including the defendant here, at about 1 am on his way home.  He was pushed onto the ground from behind and kicked and punched until he sustained injuries.  His telephone was snatched, and the gang ran away.

3.The 2nd defendant, when he was arrested, admitted that he was one of the gang and agreed to rob the victim because at the time he had no money.  The defendant was captured on CCTV at a cybercafé nearby not long after the robbery.  Under caution, he made a full admission. He also pleaded guilty to this charge.  He turned 16 this October but was 15 at the time of the offence.

4.I have had four letters of mitigation, and I have taken into account their contents. 

5.On the occasion that the defendant pleaded guilty, I adjourned, because of his age, for a full range of reports.  I do not intend to repeat the contents of the reports but I can say it makes for sad reading.  The defendant is a member of a very broken family.  In essence, he has had very little parental guidance, support or affection.  He has got several siblings and at one stage, all of them were living under the care of the Social Welfare Department.  He luckily has a grandmother that tries her hardest to look after them.  But, obviously, it is beyond her capabilities to care for children that run wild.  The Social Welfare Department has been involved with this family ever since all the children were very young.

6.Academically, the defendant put no effort into his education himself and, sadly, he has not been guided into understanding the importance of an education.  The whole family have been known to the courts. There are many care-and-protection orders to tackle not only the defendant but his siblings’ delinquent behaviour.  Despite all these troubles, the defendant until now had a clear record.

7.On the last occasion, the Young Offenders’ Assessment Panel were unable to make a recommendation.  They wanted more details.  At the same time, the defendant was deemed mentally and physically fit for detention centre, rehabilitation centre and training centre, but the Young Offender Assessment Panel accepted his remorse and believed his determination to reform himself.  They wanted to explore the possibility of a probation order with conditions attached to it.

8.Today I have two reports before me that do conflict.  I have not often seen a probation officer’s report that is so detailed.  This report at the same time is of the view that the defendant requires some training in a correctional setting and at the same time very critical of the Social Welfare Department’s dealings over the past few years, making the defendant in some ways a victim.  The probation officer is of the view that the social welfare officer did not do the job properly and the defendant fell through the cracks of the system.  In any event, the defendant has been let down by not only his parents but by the department that is designed to take over when problems arise.

9.I will not repeat the details of the report but it goes through the defendant’s history for the past three to four years in detail.  Ultimately, the probation officer is of the view that despite the Christian Zheng Sheng College offering him a place, probation officer is not convinced that will be appropriate.  He believes more stringent measures are required whereas the Young Offender Assessment Panel is of the view that the defendant should be given a chance on probation with a 24-month residential training programme at this college.

10.Robbery is a serious offence.  In such a situation where there is a gang robbing an unarmed innocent man, the court would normally look at 4 to 5 years’ imprisonment.  The defendant was 15 at the time of the offence, had a clear record and has pleaded guilty.  At this stage of his life, I should consider rehabilitation as the guiding principle in sentencing him.  I am going to give the defendant a chance to prove to himself that he can change his life.  It is not too late.  He is still very young, but the defendant has to have determination.  He has to accept that there are going to be a lot of rules and regulations at this college that he must follow for the next two years.  He has to be open to direction, to guidance and even criticism.  If he is impulsive and breaches their rules or is rude as he clearly can be according to this probation officer’s report, then he will be kicked out.  It is time to grow up, and if the defendant does not take this opportunity and this chance, there will not be a second chance.  Sadly, all that will mean is that he will spend many years in and out of correctional institutions.  I really hope for his sake that that does not happen.  The defendant has not had the easiest start in life, but he can do something about that.  It is just a question of whether he is willing to or not.

11.For this charge, Charge 2, I am going to sentence the defendant to 30 months’ probation with five conditions as set out in the Young Offender Assessment Panel report: firstly, that he shall work, study and reside as directed by his supervising probation officer; secondly, he shall complete a 24‑month residential training programme at Christian Zheng Sheng College as directed by the supervising probation officer; that he shall obey reasonable directions from his supervising probation officer regarding the college with person or groups of persons; he shall attend and complete group talks and programmes as directed by the supervising probation officer; lastly, he shall observe a home curfew whenever he is at home from between 10 pm and 6 am unless he has prior approval from his probation officer.

12.I am going to add one condition that the defendant must comply with the rules and regulations of the college during his 24-month residential training programme.  I add this condition because it is the wishes of the college that he understand that is a condition of his joining their programme. 

13.This is a warning.  If there are any breaches of any of those conditions or you do not behave in a satisfactory manner according to the probation officer, then I will consider that a breach of this probation order and I will order that you be brought back before me where I will discharge the probation and re-sentence you all over again.  So that can happen in two months’ time or in 22 months’ time.  I will have that power to re‑sentence you within the 30-month period of probation.  And if I have to do that, which I hope I do not, then I will not have much choice.  It will either be training centre, detention centre or prison.

14.I am going to adjourn for a progress report to be submitted to me on or before 28 April 2017.  That is a four‑month period. Obviously, if there is any problem before that date, the report will come early.  The defendant need not attend before me on 28 April unless the probation officer directs otherwise.

15.Defendant, please stand up.  Do you understand all those terms and conditions?

DEFENDANT: Understand.

16.Are you sure you can comply with them all?

DEFENDANT: Yes.

17.Many people have bent over backwards or have tried their hardest to help you, even your grandmother is willing, even though she does not earn much as a cleaner, she is willing to put money up to help you get through this.  If you disappoint them, they may no longer feel that they can carry on supporting you.  I think they are hoping that this will lead you onto the right path.  

18.I am going to say one last thing.  I think you must be old enough to realise that a lot of your behaviour is probably down to mixing with undesirable peers, friends who are just not good for you.  Am I right?

DEFENDANT: Yes, you are right.

19.So if you hopefully complete this successfully, it is up to you to make new friends.  But if you go back to your old friends and your old way of life, then, sadly, it will lead to trouble.

20.I have made a note here that you personally told me you understand and you are willing to give this your best efforts.  All right?  Do you understand?

DEFENDANT: Understand.