HKSAR v. Sohail Ahmed

DCCC 810/2021

[2022] HKDC 271

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 810 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (Charge 1);one charge of robbery, contrary to section 10 of the Theft Ordinance (charge 2)  and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L (1)  and (3)  of the Criminal Procedure Ordinance[2] (charge 3).

2.Full particulars of the offences are set out in the summary of facts dated 27 September 2021 admitted by the defendant on 16 March 2022. 

Charge 1 - Theft

3.In summary at around 12:30 p.m. on 20 February 2021 the defendant stole $100 from a schoolboy, aged 12.  When the boy was leaving the MTR at Jordan the defendant approached and asked the boy for directions and whether he could change money for a $100 banknote. 

4.When the boy gave the defendant a $100 banknote the defendant made an excuse to leave saying he did not have enough money to exchange and needed to meet someone in the park.  The boy being afraid did not follow the defendant and went home and told his family.  A report was then made to the police.

Charge 2 - Robbery

5.In summary at around 1:40 p.m. the next day, 21 February 2021, the defendant robbed another boy, aged 14, of $610.  The boy was waiting for a train on the platform of Mong Kok MTR station when the defendant approached and asked the boy whether he had any change as he would like to change money. 

6.When the boy said he did not have any change, the defendant said he did not believe him and asked the boy to take out his wallet.  When the boy refused to take out his wallet, the defendant said that he had someone upstairs who would come down and beat the boy up if he did not give him the wallet.

7.The boy being afraid handed his wallet to the defendant.  The defendant took out $650 ($100 x 6, $20 x 2 and $10 x 1)  and handed the wallet back to the boy. 

8.The defendant asked the boy to wait for him.  When the boy asked the defendant when he would return, the defendant gave the boy his mobile phone and told the boy to enter his contact number in the mobile phone.  The defendant then returned the two $20 banknotes to the boy and left. 

9.The boy asked the MTR staff for help and a report was made to the police.  CCTV captured the defendant snatching the boy’s wallet.

Arrest

10.At around 4:31 p.m. the same day the police saw the defendant near the exit of Jordan MTR station.  As the defendant resembled the person in the CCTV footage the police placed him under observation. 

11.The police followed the defendant to the Lok Fu MTR station where they arrested him for the robbery.  Under caution the defendant admitted he took $600 from a boy to play games because he had no money.  The defendant was further arrested for the theft.  Under caution the defendant admitted he deceived a boy into giving him $100 to buy food because he was hungry and had no money.  In a video-recorded interview the defendant again admitted the robbery and the theft. 

Charge 3 - Failing to surrender to custody without reasonable cause

12.The defendant first appeared in court on 23 February 2021 when he was remanded in custody.  On 31 March 2021 the case was adjourned to 12 May 2021 for mention. The defendant again being remanded in custody. 

13.On 19 April 2021 the defendant was granted bail by the Court of First Instance.  The defendant however failed to attend court on 12 May 2021.  A warrant of arrest was issued.  At around 1:50 a.m. on 8 July 2021 the police intercepted and arrested the defendant.

Mitigation

14.In passing sentence, I have carefully considered the oral and written submissions of Mr Sujanani, including that the defendant who is 17 lives alone in Hong Kong, his parents having returned to Pakistan in 2020[3].

Starting point for robbery

15.No knife or weapon having been used the proper basis for sentence is that which is appropriate for an unarmed robbery.  The starting point for unarmed robbery is generally no more than 4 years’ imprisonment[4].

16.The defendant is however a young offender, 16 at the time he committed the offences and now 17.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  

17.I agree with Mr Sujanani that whilst this provision does not apply to robbery, which is an excepted offence, a court must exercise great care before committing a young offender to prison[5].  I therefore concurred with the request to call for a report as to the defendant’s suitability for a Training Centre Order[6]. 

18.I have carefully considered the report.  In summary the report details that the defendant’s parents, although caring, were permissive and failed to provide effective and adequate parental supervision. 

19.When the defendant entered secondary school he became playful and rebellious.  Unmotivated to concentrate on his learning, the defendant started smoking and acquainted with undesirable peers in public parks near his home.  In 2016 the defendant joined the Sun Yee On triad society and would be absent from school most of the time.  The defendant also started smoking cannabis. 

20.Despite changing schools the defendant’s academic performance did not improve.  In 2018 having often gone missing from home, during which time the defendant smoked cocaine, the defendant was made the subject of a care and protection order. The defendant continued to be absent from school and go missing from home. 

21.The defendant was arrested for shoplifting in 2018 and snatching in 2019 for which he was eventually sentenced to detention in a Rehabilitation Centre.  Whilst subject to supervision the defendant began to work as a food-delivery worker until he returned to Pakistan with his parents in mid-2020 after the beginning of the pandemic. 

22.The defendant returned to Hong Kong alone in early 2021 and re-associated with his drug taking friends.  The defendant not only took cannabis and cocaine but also started consuming ice.  Soon after he was arrested for the present offences. 

23.While on remand the defendant has repeatedly broke the institutional rules and regulations.  During the interview with the Assessment Officer the defendant was carefree and aloof in attitude and displaying only superficial remorse. 

24.The defendant is confirmed to be mentally and physically fit for detention in a Training Centre.  In order to strengthen the defendant’s law-abiding concept and lead a regulated life and taking into account the defendant’s history of triad association and drug taking behaviour, the Assessment Officer is of the opinion a period of more comprehensive disciplinary programme including educational and vocational training, character, value and life-skill development, followed by a longer period of statutory supervision would be beneficial to the defendant’s rehabilitation.  

25.Mr Sujanani informs the court that although the defendant says he would prefer to go to prison he is instructed that the defendant is willing to go to Training Centre and asks the court to adopt the recommendation.

26.Training Centre has been imposed in robbery cases involving young offenders, for example in HKSAR v Wong Tsz Hin where the applicant a 16 year old boy acted under the influence of an older man[7].  Mr Sujanani in submitting that it would not be disproportionate or inappropriate to impose a Training Centre Order also refers the court to cases in the District Court where a Training Centre Order was imposed for robbery[8]. 

27.Taking into account the defendant is only 17, 16 at the time of the offence; has pleaded guilty to all charges and having carefully considered his character and conduct, including that he has a previous conviction for theft for which he was sentenced to  Rehabilitation Centre and the circumstances of the offences and that the defendant has spent nearly eight months in custody, I am satisfied that it would be in the interest of the defendant and that of the community that he undergoes a period of training in a Training Centre[9].

28.The defendant is convicted and sentenced to detention in a Training Centre concurrent on each charge.