HKSAR v. Leung Ho Hin and Another

DCCC 79/2018

[2018] HKDC 853

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 79 OF 2018

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Reasons for Sentence

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1.In this case the 1st and 2nd defendants, who were both at the time of the offence 18 years old, have pleaded guilty to a joint charge of robbery and the facts to which they have agreed show that that robbery occurred in the early hours of 8 November 2017 in Yuen Long in the New Territories.

2.The victim in question was walking along the street and turned around and saw both the 1st and 2nd defendants.  He was under the impression that one of the defendants was holding a long, silver object that he thought was a knife, but there is no definite evidence as to that.

3.The victim was scared, fell to the ground, sustained abrasions, and the 1st defendant asked for the watch to be passed to him, and it was, and also some $5,000.  The defendants, who were acting together, fled thereafter.  The watch is in fact valued at $163,000. 

4.The defendants were later arrested, the 1st defendant admitting stealing the watch and the cash, and the 2nd defendant also made admissions that he committed the robbery because he had no money.

5.As far as the defendants’ background is concerned, the 1st defendant has a criminal record.  He is currently aged, it says, 18, although I think he has just been -- yes, so he is still a young man; has previous conviction for wounding, for inflicting grievous bodily harm back in 2014, where he was placed on probation, and then two further records for breaching the probation order which had been extended, finally ending up in a Drug Addiction Treatment Centre in June of 2016.

6.The 2nd defendant, also recorded as being 18 years of age, has three previous attendances in court, the first in 2014 for an assault case.  He was placed on probation.  By December of 2014, he had breached that order and was placed in a rehabilitation centre, and then after escaping from custody in December was also sentenced, presumably concurrently, to a rehabilitation centre.

7.So both young men who have committed crimes of violence in the past, also on the face of their records, certainly the 1st defendant, involved in drugs, with an addiction by 2016, and then they commit this robbery in November of 2017.  So both, on the face of it, unruly characters.

8.Turning to the offence to which they have pleaded guilty to, it is a robbery.  It is a serious offence, with lengthy prison sentence as the normal sentence that will be imposed.  It has been said that in a serious robbery the fact of a person’s age is not relevant, but this, I believe, does not -- this case does not fall into that category of offending, but, of course, it is a serious matter.  It is a robbery committed as a joint enterprise.  Valuable items were taken, but the court cannot be satisfied on the facts agreed that it was an armed robbery and could be classified as an unarmed robbery, where the maximum sentence for a starting point would be one of 4 years’ imprisonment.

9.Now, given the fact that the defendants have been in custody for some time and also they were of an age where they may benefit from rehabilitation, I sought to see if there was any programme that the Correctional Services Department could -- by which these defendants could receive training, so they both were referred to training centre orders.  They are both found to be suitable for that form of disposal.

10.As far as the 1st defendant is concerned, there is a substantial history set out which provides further details of my conclusions about him from his criminal record.  It sets out his background, diagnosed with childhood attention deficit disorders, which may go a long way to explaining how he has ended up where he is now.  It deals with his criminal records, starting with being placed on probation, but notes the increasing use of drugs, which led to him being sentenced to a Drug Addiction Treatment Centre and also being recalled to that centre at a later date.

11.The conclusion of the Correctional Services Department is this defendant would benefit from disciplinary training, coupled with statutory supervision, and should be on a training centre order.

12.Dealing with the second defendant, again a similar background.  Again, this defendant coming from what is described as a broken family, becoming delinquent, eventually placed on probation.  Various offences are noted.  Noted that 2017 he was consuming drugs - ketamine and cocaine - and apparently involved in trafficking in those drugs.  Later been arrested for this offence.  Since arrest, been on disciplinary report for a number of times, which shows his need for disciplinary training.

13.In sentencing these two defendants, taking into account the offence they have committed, their particular backgrounds, and the likelihood trajectory of their lives, which would be towards increasing sentences of imprisonment, and this would appear to me to be the last opportunity to aim at a rehabilitative sentence, which when, coupled with their existing remand in custody, would provide, in my view, a deterrent effect towards them.

14.So, taking into account both their interests and the interests, I think, in the public of making an attempt to rehabilitate these defendants, I am going to order that, in respect of this charge, both the 1st defendant and the 2nd defendant be placed on a training centre order as recommended in their cases, and that is the order I will make.