HKSAR v. Tsang Lok Fu and Another

HCMA000944A/2003

HCMA 944/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO.944 OF 2003

(ON APPEAL FROM TWCC 667/2003)

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Coram: Hon Beeson J in Court

Date of Hearing: 10 December 2003 and 14 January 2004

Date of Judgment: 14 January 2004

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J U D G M E N T

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APPEALS AGAINST SENTENCE

1.I will now deal with the appeals against sentence. In sentencing, the Magistrate noted robbery was a serious offence and must attract a deterrent sentence. He considered robberies of this type were prevalent in the area. He noted that no weapon was used and force was minimal. The fear of being subjected to violence and being pushed around was sufficient to make the victim hand over the money.

2.He obtained reports for each appellant (who had clear records) having remanded them so such reports could be obtained. In each case, there was a background report and a suitability report as to fitness for detention in a Detention Centre, Rehabilitation Centre or Training Centre.

3.The reports showed that the 1st appellant had been the subject of a Care and Protection order for an offence committed in 2001. He had maintained a positive response towards counselling and his case was closed in April 2003. He had a caring and a supportive family. There was justified concern about his mixing with dubious peers. He was a school underachiever. He was thought to be suitable for the Detention Centre programme and a place was confirmed for him.

4.The Detention Centre report indicated that the 1st appellant's father was over-protective towards him and wanted a lenient sentence for him, although it was considered doubtful whether the father could supervise him effectively in the future. The officer believed that a short period of disciplinary training would be beneficial. On that basis, the Detention Centre Order was made.

5.The 2nd appellant's reports showed he was a school dropout who had been idling without a job since the end of 2001. His mother had started working around the end of 2000 and as a result, her supervision of the 2nd appellant had diminished. He had had frequent night activities since mid-2002. Because of his obesity, he was considered unsuitable for a detention in a Detention Centre, but was mentally and physically fit for detention in either Rehabilitation Centre or Training Centre. The officer considered him more suitable for detention in a Rehabilitation Centre and confirmed a place was available. The Magistrate made a Rehabilitation Centre order.

6.Having considered the circumstances of the offence and the contents of the various reports sought in respect of the appellants I was of the view that a Probation Order should have been considered as the initial sentencing option, but no recommendation was sought from the reporting officers. I agree that robbery is a serious offence and I respect the Magistrate's view that it is prevalent in the area. Nevertheless, given the ages and the particular circumstances of this robbery, it appears desirable that the appellants, with their families, should be given an opportunity to show they can work to improve their own behaviour and working history. For that reason, I sought a Probation Order for each appellant before deciding the appeal on sentence.

7.I have now had those reports. I note that the 1st appellant is unrepresented. The report has been explained to him by the interpreter.

COURT:	Mr Kwong, I'll deal with you first.
MR KWONG:	Thank you, my Lady.
COURT:	You've seen the report?
MR KWONG:	I have seen the report and I have personally explained the contents to the 16-year-old young man and also to his father and mother who are in court. My Lady, all the factual matters mentioned in the report are correct and I'm instructed to supplement on small matter. Towards the end of paragraph 7, there was a sentence which read, "He, the appellant, failed to look for a gainful employment after the present legal proceedings."
COURT:	Yes.
MR KWONG:	My Lady, in fact, concrete steps have been taken and I've just been shown this morning that an employer by the name "Explorer Paper Products Factory Limited..."
COURT:	"Explorer..."
MR KWONG:	Explorer Paper Products Factory Limited of Tsuen Wan had offered the young man a job at $4,000 a month commencing 1 February this year, and the title of the job is office attendant.
COURT:	Is this a family connection or is it an ordinary firm?
MR KWONG:	It's unconnected to the firm, my Lady, it's a job which the family is able to obtain for the young man.
COURT:	Yes.
MR KWONG:	My Lady, subject to the approval of the probation officer, he, the appellant, intends to take up the job.
COURT:	You've seen the recommendations of the officer?
MR KWONG:	He has not yet told the officer, but he will.
COURT:	No, but you've seen the recommendations and the report?
MR KWONG:	Yes, I have. The three conditions mentioned in the report are acceptable to the parents and to the appellants, especially the curfew, because that curfew would solve all the roots of the problem in nocturnal activities. And he -- and they also agreed to the periods recommended, namely, 18 months.
COURT:	So your client is agreeable to going on probation?
MR KWONG:	Yes, indeed.
COURT:	Yes, is there anything that's relevant that you should tell me?
MR KWONG:	No, apart from the fact that three of them are grateful for the last opportunity which my Lady is going to give them and they earnestly ask for it, ask for the Probation Order.
COURT:	Yes, thank you, Mr Kwong.
MR KWONG:	Thank you very much.
COURT:	Mr Tsang, you will note that you have been examined again by the probation officer who has set out in great detail your family history and your social and employment background. He confirmed what was already known - that you have been mixing with what he termed dubious peers since 1999, and that includes triad peers. The conduct of your care and protection order is also described in paragraph 5.
	The officer considers, obviously, that you are a borderline case. It is noticed in paragraph 10 that after this case occurred, your employment pattern as a lorry driver did change to become more stable. The officer believes that you do not have sufficient insight into your own wrongdoing and he notes that your alleged remorse seems to be shallow and limited. He considers that you lack perseverance and willpower to discipline yourself. Then comes the comment that you are a borderline case, but you may benefit from open supervision to a certain extent.
	The officer then suggests that it is possible, if I approve, that you can have a 2-year probation period with special conditions, that you study and work as directed, that you obey a curfew from 10.30 at night to 6.30 am the next morning, and that you attend the groups or programmes run by the Community Support Service Scheme or other agencies that the officer might direct you to.
	First of all, would you be agreeable to going on probation and would you be agreeable to abiding by those conditions?
1ST APPELLANT:	Agree. Agree, and I would abide by the rules.
COURT:	Yes. Take a seat, please. I want to speak to both of you about this matter. I am allowing the appeal against sentence to the extent of substituting for the orders that have been made previously, a Probation Order in respect of each one of you.
	It is proposed in each case that it would be 2 years' probation supervision. You will each have to study or work as directed by the Probation Officer and in each case that you will stay at home from 10.30 at night to 6.30 the next morning unless you have the prior approval of the Probation Officer or you are in the company of one or both of your parents.
	If the officer directs you to do so, you will attend a group or programme run by the Community Support Service Scheme or any other agency that you might be directed to. Do you both consent that you are agreeable to the order and the conditions?
1ST APPELLANT:	I am willing.
2ND APPELLANT:	I will abide by the rules.
INTERPRETER:	A2 agrees.
COURT:	Let me tell you that if anybody telephones your house or visits your house and finds that you are not on the premises between those hours, that will be a breach of probation and you will be brought back before the court and sentenced as if the probation order had not been made. I do not regard probation as a soft option because it is a 2-year commitment.
	Let me tell you if there is any report from the Probation Officer that you are not behaving or not abiding by the conditions, this order will cease almost immediately because I am not wasting the time of a Probation Officer that can be better spent on people more worthy of it.
	You know what to expect if I revoke the probation order. You will go to Training Centre which is the most likely place for you.
	Now, whose parents are in court?
INTERPRETER:	We have the mother of A1; parents of A2.
COURT:	Parents of A2. In respect of the parents of Mr Chan, I would like to tell you that you are in charge of this child and he is to do as he is told. If you do not want him to spend the rest of his life in Training Centre, it is your responsibility to keep an eye on him and he is to be responsible and report to you as to what he is doing, where he is going, and what people he is seeing. If you are not satisfied with his behaviour, report him to the probation officer or come back to court and tell me about it.
	In respect of the 1st Appellant...
MR MADIGAN:	His mother is here.
COURT:	Madam, you are here. The same thing applies to you, madam. If you are not satisfied with your son's behaviour - if he is causing trouble or not telling you what he is doing and where he is going - complain to the Probation Officer or come back to court. I note that when he was on the Care and Protection Order that there was some improvement in his behaviour when he was supervised, which is why I am prepared to let him have this chance on probation now. But I tell you that it is probably a last chance in his case, so if you are not happy with his behaviour, speak to the Probation Officer about it.
	Yes, thank you, Mr Kwong. As I say, the appeal is allowed to the extent of the substitution of the Probation Order in the terms that I've explained to the defendants - appellants.
	Yes, thank you, Mr Madigan; thank you, Mr Kwong.
MR KWONG:	Thank you. Good day.

Representation:

Mr P K Madigan, SGC of the Department of Justice, for HKSAR

Mr Tsang Lok-fu, 1st Appellant, in person

Mr Paul Kwong, instructed by Messrs Paul Kwong & Co., for the 2nd Appellant