HKSAR v. So Hiu San

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 5th defendant was convicted after trial of two charges: Charges 2 and 3. Both were attempted-robbery offences.

2.I will not repeat all the facts.  I gave great details in my reasons for my verdict.  However, in short, Charge 2 was an attempted robbery of an unknown male on 23 March 2016.  Five boys attempted to rob an unknown man who challenged them despite them all holding water pipes.  He was hit once but turned to face the gang which seemed to have scared them and they ran.

3.Charge 3 took place the next night.  Again five boys attempted to rob this time a female victim pulling a suitcase and a handbag.  Three of the five were armed with pipes.  This time they were braver and hit this female three to four times.  However, she was equally as resilient as the unknown man and screamed.  All five ran away.  Hencewhy, both are attempted-robbery offences.

4.During the course of the trial, the 2nd and the 6th defendants gave evidence as prosecution witnesses implicating the 5th defendant.  I accepted their evidence as credible.  I found that their evidence proved beyond reasonable doubt the 5th defendant was also an accomplice and had an intention to rob with others.  I found the prosecution’s evidence rebutted the presumption of doli incapax.  The defendant was three weeks off his 14th birthday.  At the time of these offences, the 5th defendant was 13 years old, the youngest of the group.  He is now 14 years old.  At the time, he had a clear record.

5.I after conviction called for reports, including a probation officer’s, a detention centre, a training centre and a rehabilitation centre report.  Ultimately, they recommended either detention centre or probation order.  I will not repeat the details of the reports.  They give the defendant’s full background.  

6.The defendant does come from a broken family. His parents split up when he was only 6, and his father remarried when he was 7.  He lived with his father and stepmother in Shenzhen but would travel daily to school in Hong Kong.  What that meant was he had a lot of freedom and that it was about then that he met what can be described as undesirable peers. His mother died in 2014, unfortunately, of cancer at about the same time his father, stepmother and stepsister with the defendant all moved back to Hong Kong.  Despite not having to travel any more to come to Hong Kong to go to school, his academic performance was not impressive.  He did not do well at school academically.  He did, however, prove to be a good sportsman.

7.What is troubling is that even after his arrest in March 2016, he did not buckle down.  He still continued a carefree attitude towards his studies and was self-indulgent according to the probation officer. In fact, the disciplinary master of his school recommended that the defendant consider a boarding-school placement, but it seems the defendant refused and his father did not insist and follow this recommendation.  Now only after he has been in remand for two weeks is he expressing remorse and understanding the error of his ways.  He realises that he has been very immature and succumbed to peer pressure.  He now says that he wants to go back to school.

8.I have to say this is a very borderline situation where the defendant should be given a chance to go back to school. However, I have balanced the comments in the reports with the fact that he is and was at the time of the offence very young.  He also had a clear record.  In fact, I should consider rehabilitation in such a situation.  And, lastly, the probation officer does, despite his very frank report, believe the defendant could benefit from a period of probation.

9.I have also had a letter from the defendant and his father.  The defendant expresses genuine remorse and his father accepts his remorse.  His father in particular says the defendant has promised him he will change his lifestyle and asks for leniency on behalf of his son.  I hope his promises and intentions are genuine.

10.I have also had social workers’ letters evidencing some social work and expressing a view that he is rebellious as opposed to a true juvenile delinquent.

11.Lastly, I take into account what Mr Yip has said in mitigation and he has said all he can to persuade me to give the 5th defendant a chance.

12.Having given it much thought and despite the fact that the defendant was found guilty after trial, I am persuaded to give him a chance on probation.

13.Defendant, please stand up.  For Charges 2 and 3, I am sentencing you to 18 months’ probation, both orders to be served concurrently.  Therefore, it is a total period of 18 months’ probation with the following conditions.  You shall receive residential training at Tuen Mun Children and Juvenile Home for a period of 10 months.  Secondly, you shall study, work and reside as required by the supervising probation officer. 

14.I will add three further conditions, third being you are not to associate with any persons or groups of persons as directed by that probation officer.  Fourthly, you shall observe a curfew, if imposed, when at home as directed by the probation officer.  Lastly, you are to participate in any community programmes or activities deemed constructive to your rehabilitation as directed by the probation officer. 

15.I will ask for a progress report.  That will be a date of 20 April.  The probation officer will decide, will determine if your presence is required on that date.  If not required, a report to me will suffice.

16.Let me explain.  If there are no problems and you are doing well in Tuen Mun Juvenile Home, then the probation officer will not disrupt your schedule and ask you to come to court.  However, if there is a problem, you will be brought back before me on 20 April.  In fact, if there are any problems prior to that date, you will be brought back to me before that date.  If you breach any of these conditions, if you do not comply with the juvenile home’s rules and regulations or do not behave or perform to the satisfaction of the probation officer, then you will come back before me. If I am satisfied that you have breached the probation order, then I will discharge the probation order.  And if I have to do that, the only alternative would be either detention centre or training centre.  Do you understand this warning?

5TH DEFENDANT: Yes.

17.Are you willing to comply with all those conditions under probation for a period of 18 months?

5TH DEFENDANT: Yes.