HKSAR v. Wong Tsz Kai

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 1st defendant was charged and ultimately pleaded guilty to Charge 3, an attempted robbery that took place on 24 March 2016.

2.Briefly, the facts are that the 1st defendant, the 2nd defendant, and three others, attempted to rob a female in Sheung Shui, Tung Hing Road, outside the public toilets.

3.Three of the defendants were armed with iron water pipes.  Previously, the plan between them was to look for parallel traders in the Sheung Shui area, possibly because they had valuables or cash. That evening they targeted a female.  It was raining, and she was carrying an open umbrella with a wheelie case in one hand, with her handbag on top of it.

4.From behind, the 6th defendant hit her umbrella with his pipe.  She was also hit on the arm that was holding her wheelie case and handbag several times.  This victim resisted and shouted.  All five were scared off; running away from the scene.

5.The police later seized two of the water pipes.

6.This victim was taken to hospital.  Luckily, her injuries were not serious.  She suffered bruising.

7.It is a serious offence.  The facts are serious.  There was a gang of males, and weapons were used.

8.The 1st defendant was 17 at the time of the offence; now 18 years old.  He was arrested with others on 28 March, several days later.  He did make an admission under caution which I found to be made voluntarily.  He was not bailed out until 11 August.  He has spent almost 5 months in remand.  He has now just spent another further 2 weeks in remand whilst I asked for reports to be prepared.

9.The 1st defendant had, until now, a clear record.

10.I have sentenced some defendants, and the 2nd and the 5th defendants remain to be sentenced.  Some defendants faced three charges, some two.  This defendant and the 4th defendant, only faced one.

11.This defendant did not plead guilty before trial.  In fact, he did not plead guilty until the close of the prosecution case, and if I was considering a term of imprisonment, he would get almost none or very little discount for that plea, because there is no evidence of remorse in such a situation.  The question for me is:  is the 1st defendant genuinely remorseful?

12.I called for five reports:  a training centre, a detention centre, a rehabilitation centre, a probation officer’s and a community service order report.  I will not repeat the details of those reports, but from the reports I know that the defendant comes from a divorced family.  He is the youngest of three children.  He was raised by his mother in mainland China whilst his father remained in Hong Kong.  His father remarried in Hong Kong.

13.The defendant did come to Hong Kong on a single-way entry permit in 2012, when he was already 14 years old.  He did complete primary school in mainland China, but when he entered secondary school in Hong Kong, a common issue arose:  he could not catch up with the curriculum here.  He got left behind.  Academically he was unable to perform, but not necessarily through lack of ability.  However from an athletic point of view he was extremely talented.  It is a shame that that talent has not been nurtured.

14.Because he fell behind at school, problems arose, and in his area he got mixed up with triad-related peers.  Not long before this offence he met and hung out with the co-defendants.  By early 2016, the 1st defendant had left school and was trying to work as a plumbing and electrical worker.

15.I have had a letter from his entire family.  His parents say that he is a helpful and respectful son.  They believe his remorse and guilt is genuine.  His siblings say that their relationship, although he is the youngest, has always been good.  His family believe he knows he has disappointed them, and to make things right, he wants to go back to school.

16.I have also had a letter from a social worker, Miss Pang, who praised his voluntary work, and although she came across him prior to this offence, I note that his voluntary work was after his arrest. I hope that he did this work with genuine compassion and not only to bolster his mitigation.

17.The probation officer was impressed by the defendant’s remorse and believed the defendant hopes to better himself and wants to go back to school.  The probation officer is willing to consider probation.

18.The training centre and detention reports say that all centres are suitable, but detention centre most suitable.

19.In considering sentence I do have to balance what must be a punishment with an aspect of rehabilitation, and this principle becomes more pertinent when defendants are young and of a clear record.  I have to balance that out with the seriousness of the offence.

20.In this case, clearly peer pressure played a part.  Sadly, it led to very serious consequences, and I am sure almost all these defendants in this case have matured from this very sobering experience, and I note the 1st defendant spent 5 months in custody.  I hope he had time to reflect what it is to lose one’s freedom.  He must be aware that if he does not stay away from undesirable peers, if he does not turn over a new leaf as promised, and if he does not learn a skill, get a job or go back to school, he will be back before the courts before long.  In that case, he will face either training centre, detention centre, or prison.  This is a warning that that will be the consequence of not learning a lesson now.

21.I am willing to give the 1st defendant his one chance today.  I accept his remorse is genuine, but he has to prove it to not only me, but the probation officer, his parents, his family, and the social worker.  His age, his previous clear record, the fact he only faced one charge, good reports, and the probation officer’s report, goes in his favour, plus I take into account time he has spent in remand.

22.Even though the offence is serious, the facts were serious, I will consider probation for the 1st defendant.

23.He must realise that you only get one chance, and if he wastes it, then he will be back before the courts.

24.He is sentenced to 18 months’ probation, with many conditions.  Listen carefully please.

25.You shall be of good behaviour and keep the peace.  Secondly, you shall keep in touch with the probation officer in accordance with such instructions as may from time to time be given by the probation officer.  In particular, you shall, if the probation officer requires, receive visits from the probation officer at your home.  You shall inform the probation officer at once of any change of residence or employment or place of study.  You shall work, reside and study as directed by the probation officer.  You shall not associate with any persons or group of persons as directed by the probation officer.  You will observe a curfew, 10.30 pm every night to 6.30 am every morning, unless otherwise authorised by the probation officer, or you are accompanied by your parents.  You shall, lastly, participate in any community programmes and activities deemed constructive to your rehabilitation as directed by the probation officer.

COURT: 1st defendant, please stand up. Do you understand all those conditions?

1ST DEFENDANT: Yes.

COURT: Are you willing to comply with all of those conditions?

1ST DEFENDANT: Yes.

COURT: If you are in breach of any condition any time in the next 18 months, the probation officer will have you brought back before me. If that happens, you will go to training centre, detention centre or rehabilitation centre. You only get one chance. If you do not take it, then I have just explained the consequences.

I am also calling for a progress report. That will be on 20 April 2017. Obviously, if any problem arises before then, you will come back before me. Your presence is only required on that day if the probation officer says so. If the probation officer feels it is necessary, then you have to attend the court. If not, he will submit the report to me. Understand?

1ST DEFENDANT: Yes.