HKSAR v. Yau Yat Shan

DCCC 994/2021

[2022] HKDC 518

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 994 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of robbery.

2.On 9 February 2020, the defendant entered into an agreement to rob Circle K convenience store in Tai Hing Commercial Complex in Tuen Mun with PW1.

3.At about 3:44 am, PW1 pointed a knife at the store keeper and asked him to go to the cashier counter, while the defendant also pointed a knife at the store keeper and asked him to open the cashier drawers.

4.PW2 took out the cash ($6,558.60) from the drawer and placed them inside the bag which was held by the defendant.

5.The defendant also told PW1 to take 2 packets of cigarettes valued at $118.

6.The defendant was subsequently arrested on 27 February 2020.

Criminal record

7.The defendant committed 5 offences of common assault in 2017 and he was placed on probation, he subsequently breached the probation order, the court ordered the probation period to be extended.

8.He committed two offences of blackmail in 2020 and was sentenced to DATC.

9.In 2021, he was sentenced to training centre for 3 charges of arms robbery in the High Court.

Mitigation

10.The defendant is now 19 years of age.  When he was in primary school, he was diagnosed to be a dyslexic and suffered from ADHD.  He also has antisocial personality disorder.  He is also a muti-drugs abuser.

11.The present case was committed in February 2020, while the High Court robbery cases were committed in March 2020.

12.He is now serving a sentence of training centre order.  The defence invited this court to call for training centre suitability report, psychological and psychiatrist reports before sentencing.

Sentence

13.This is a classic case of arm robbery.  The sentencing guidelines in Mo Kwong Sang v R [1981] HKLR 610 applied as knives were displayed.  It was early in the morning, around 3:44 am, when the robbery was taken place in Circle K.  That means there were hardly any customers in the shop.  The victim must be subjected to stress and fear when facing with 2 robbers demanding cash from the drawers.

14.All the appeal cases said that these workers working late in the night are indeed vulnerable and they need to be protected.  The judgement from the Court of Appeal yesterday also stated the same in HKSAR v Lo Sing Chee [2022] HKCA 800.

15.There is no doubt that the defendant can be sentenced to a period of imprisonment for as long as 6 years.

16.According to S 109A (IA) of the Criminal Procedure Ordinance, it said that:-

“this section shall not apply to a person who has been convicted of any offence which is declared to be an expected offence by schedule 3”

17.Robbery is an excepted offence.

18.I therefore is not obliged to call for any report before sentencing.

19.However, sentencing a young offender is never an easy or straightforward task for the court.

20.In the present case, the defendant is 19 years of age and he was sentenced to training centre for 3 charges of robbery (also involved the producing of knives) in April 2021 in the High Court (HCCC 244/2021) after careful consideration by the learned Judge.  That means at the time of hearing this case, the defendant is still serving the training centre order.

21.The learned judge also called for various reports before sentencing the defendants.

22.Today, the reports (training centre, psychiatric, psychologist) are now prepared before me, of which the content of the reports also telling me the same things that the defendant suffered from a number of problems:-

(a) He is a dyslexic;

(b) He suffered from ADHD (both of which affected his academic performance );

(c) He abused drugs, such as cocaine, ketamine, ecstasy and cannabis (he committed the present offence in getting easy money).

23.The clinical psychologist, Ms Lam, the visiting psychiatrist Dr Tang and the medical officer of Siu Lam Psychiatric Centre all have examined the defendant and all come to the same conclusion that he is medically fit for detention in a Training Centre as the defendant has showed:-

“improvements in mood and impulsivity management and interpersonal skills. It was likely for him to benefit from continuing guidance and emotional support from his family, distancing himself from negative peer influence, and abstinence from substance.” After his discharge from the Training Centre, there will be a period of supervision.

24.Today, the defendant also provided a written letter to tell me that what the past 816 days had done to him, that has helped to improve his mental state and the way to handle difficulties in life.  He has given enough troubles to his mother in the past and he understands that he has to be a good son.  He is looking forward to be released soon and be reunited with his family.

25.To this end, I agree with the recommendations of the reports that the defendant should continue to stay in the training centre to receive the necessary training programmer which can benefit him in a long term.

26.I hope the defendant can take this opportunity to reinvent himself, to stay away from drugs and bad peers, to come out as a good person to himself, to his family and to the society as there is a long road ahead of him.

27.I impose a sentence of training centre order in the present case.