HKSAR v. Man Ka Wai and Another

DCCC 549/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 549 OF 2016

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Reasons for Sentence

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1.The 4th defendant pleaded guilty just before the trial began.  He only faced one charge and pleaded to Charge 2, that is an attempted robbery charge.

2.The 6th defendant pleaded guilty before trial and gave evidence as an accomplice for the prosecution.  The 6th defendant faced three charges and pleaded to all three.  Charge 1, the 6th defendant pleaded guilty to snatching a mobile phone out of the hand of the first victim.

3.Both the 4th and the 6th defendant admitted an attempted robbery of the second victim.   He was hit on the back with an intention to rob him by five robbers.  However, he scared them away, hence it is only an attempted robbery.

4.The 6th defendant also pleaded to Charge 3 where he admits being part of a gang that targeted a female victim who was hit several times with iron pipes with an intent to rob her.   She resisted the attempt and scared off the group.

5.These three charges happened on three consecutive dates from 22 March.

6.The facts I have before me are that the 4th defendant was arrested on 28 March 2016.  The 4th defendant admitted under caution the 2nd charge.  He admitted that he and four others armed with pipes bought that day picked a target to rob in Sheung Shui.  One of the five hit the victim but the robbery was unsuccessful. 

7.The 4th defendant was 15 years old at the time of the offence, he is now 16 and had a clear record.

8.The 6th defendant was arrested on 31 March 2016 and he admitted, under caution, Charge 1 where he snatched the first victim’s phone out of her hand and ran away.  He gave evidence that he committed this theft with the 3rd defendant only, the phone was sold for $1,000 and split between them.

9.Under caution, he also admitted Charge 2, an attempted robbery of an unknown victim with four others, all armed with iron pipes.  The same applies for Charge 3, he admitted to the police that the third victim was in fact hit several times with an iron pipe but resisted.  The five robbers then fled empty-handed.  That third victim was taken to hospital with bruising to her arms from the water pipes. 

10.The 6th defendant said that the group had targeted parallel goods traders to rob and that third victim had a handbag and a suitcase. 

11.The 6th defendant was 17 years old at the time of the offence and he is now 18 previously having a clear record.

12.Because of the seriousness of the facts, charges, ages of both defendants and their previous clear records, I call for a full range of reports, probation officer’s, training centre, detention centre and rehabilitation centre reports.  Those reports are before me today and I have heard full mitigation. 

13.Both defence counsel have said all they can say on behalf of the defendants. 

14.The 4th defendant is deemed suitable and physically fit for training centre, detention centre or rehabilitation centre, but detention centre was deemed the most appropriate.  The probation officer having written a very detailed report was willing to give the 4th defendant a chance under probation. 

15.I have had letters from the 4th defendant’s family, his parents, himself, his last employer and social workers.  I will not repeat the details of the reports or the letters, suffice to say I now have a very full picture of the 4th defendant’s family, his background, his childhood and his education. 

16.The 4th defendant was brought up in a village house in Ta Kwu Ling.  This is his father’s second marriage.  His father is much older than his mother.   He has many step-siblings, but his mother has three children including the defendant.  He has an older sister at college and a younger sister at school.  His father has admitted that he had been overindulgent with the defendant.  Parental control has been limited. Academically, the 4th defendant did not do well, quitting school in January 2016 without completing Form 2.

17.He was also subject to a care and protection order in July 2014 due to his being missing from home.  He may have a clear record but he does have a superintendent’s caution for a triad related offence in April 2015.  In fact, he has not had a good start in life, he admits mixing with triads since he was 12.   Clearly, that superintendent’s caution was not an effective deterrent.  However, after his arrest for this offence and before trial, he applied himself to a job in a tea shop. 

18.The probation officer spoke to the defendant’s employer who praised him for being hardworking, conscientious and got on well with his colleagues so much so that she or he despite knowing of this conviction would give him back his job.  The report demonstrates that the defendant before trial had a determination to reform himself.

19.I also noted that the 4th defendant told the probation officer that he did not rob because he needed the money; he wanted to be part of a gang and seek approval of his peers.  He agrees that he was stupid and has weak moral standards.  To recognise those weaknesses is a start. 

20.The letters from his mother and father are touching.  They are clearly distressed and disappointed.  However, they are still very supportive and are hoping that his remorse is genuine and his promise to turn over a new leaf a reality.  Their support is very important for the defendant’s rehabilitation. 

21.The probation officer and his parents believe that he is remorseful and has learned a lesson.  From his own letter, I can see that his court experience and remand has been a shock to him.  He has put pen to paper and knows what he has to do.   If he is only paying lip service to his alleged remorse, then he can be sure that he will end up back in front of the court. 

22.Now I am telling the 4th defendant and the 6th defendant that if they do not stay away from juvenile delinquents and triad groups, then they will be back before the courts.  Both can be said to be pre-warned. 

23.For the 4th defendant, the charge of attempted robbery merits a serious sentence and I should consider either training centre or detention centre.  However, the probation officer and defence counsel are persuasive.  I do bear in mind that rehabilitation should be at the forefront of my sentencing exercise.

24.I will consider probation for the 4th defendant but only because I know that if he is in breach of the probation at any time before it expires, I can send him to training centre or detention centre. I intend to call for progress reports to ensure there has been full compliance, and the 4th defendant must be warned that any transgression, small transgression, will result in me discharging the probation and resentencing the defendant.   Understand?

4TH DEFENDANT: Yes.

25.The 6th defendant faces three charges, all three serious, all committed one day after the other, not only was there an intention to rob the victims with others but armed with pipes. 

26.As I have said, I have heard full mitigation.  I have had a letter from the 6th defendant himself.  His letter shows some maturity now. 

27.The reports all say that the 6th defendant is suitable for detention centre, training centre or rehabilitation centre, but detention centre would be most suitable. 

28.The probation officer’s report again is very detailed.  However, the officer is not confident that probation would be appropriate and is of the view that there is a need for some disciplinary training in a custodial setting. 

29.The 6th defendant was born in China and did not come to Hong Kong till he was 12.  He was not brought up by his parents but by grandparents in China.  He could not catch up when he arrived with the Hong Kong education system and this led to a downward spiral.  I can understand when he says he felt inferior to his schoolmates and I can understand why he then thought that committing these sorts of offences would gain him some superiority with his peers.

30.The defendant’s father is much older than his mother, has retired and sadly recently hospitalised after a stroke.  His elder sister is much older than the defendant and working.  His mother was working but has quit her job to look after her husband.  So it is clear that even after the defendant came to Hong Kong, he did not have much parental supervision or control.

31.His mother has quite frankly said that they do not have a good relationship because she feels he does not listen to her; she is frankly at her wit’s end.  She is still supportive giving the probation officer the opinion that the 6th defendant needs to start afresh away from undesirable peers.  His situation of trying to catch up at school led to poor academic achievements and truancy.  However, I will say to the defendant that it is not too late and I repeat what I said earlier that if he does not take this opportunity to stay away from juvenile delinquents and triads, then he will unfortunately be back before the courts. 

32.If the defendant does take this opportunity and either learn a trade, go back to school or get a job, then hopefully he will be able to, as he says, put this all behind him. 

33.The 6th defendant did give evidence for the prosecution as an accomplice, and I do take it into account.  I will not say more than that, but in a case like this, it is hard to quantify any additional discount for assisting the prosecution.

34.It is all about rehabilitation when the 6th defendant is young and previously had a clear record.  Training centre may have been more appropriate for such serious charges.  However, considering his assistance as a prosecution witness, the details of the reports and their recommendations, the mitigation I have heard and the defendant’s own letter, I will find the detention centre the most appropriate form of sentence. 

35.The 4th defendant, please stand up.

36.You are, for Charge 2, sentenced to 18 months’ probation, not 15 months as recommended, but 18 months, with four conditions as set out in the report.  I will repeat them.  You will work and reside as directed.  You will not associate with any persons or groups, a group of persons as directed.  You will observe a curfew from 10 pm to 6.30 am unless otherwise authorised by the probation officer or accompanied by your parents and this will require you to communicate with your probation officer frequently, it is not that you cannot be later than 10, you just have to have permission.  Lastly, you shall participate in any community programmes and activities deemed constructive to your rehabilitation as directed.

37.I will call for a progress report to be ready on or by 20 April.  I will leave it to the probation officer to determine if your presence is required on that date.  If not required, then submitting a report to me will suffice.  Obviously, if there is a problem before April, the probation officer will have you brought back before the court before April.  Do you understand all these conditions?

4TH DEFENDANT: Yes.

38.And you are willing to comply with all those conditions?

4TH DEFENDANT: Yes.

39.And you understand that if you are in breach of this probation, I will resentence you to training centre or detention centre. 

4TH DEFENDANT: Understand.

40.Right.  6th defendant, all three charges, you are sentenced to a detention centre order, all to be served concurrently. You understand?

6TH DEFENDANT: Yes.