HKSAR v. Chow Man Ho and Another

DCCC463/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 463 OF 2009

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Reasons for Sentence

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1. D1, you have pleaded guilty to one offence of robbery, contrary to section 10 of the Theft Ordinance, Cap.210, and two offences of attempted robbery, contrary to section 10 of that same ordinance and section 159G of the Crimes Ordinance, Cap.200.  D2, you have pleaded guilty to a single offence of attempted robbery.  That was jointly with D1.

2. The Brief Facts of each case are as follows.  Charge 1 included only D1.  At around 1.10 am on 13 March of this year, PW1, a male aged 21, was walking on Tin Ping Road, Sheung Shui.  Suddenly, three males, one of whom was you, D1, approached.  Two males held his shoulder and hands from behind whilst the third held a 10-inch-long object in his hand and declared robbery.  PW1 was not sure what the object was.

3. PW1 struggled and freed himself and punched the third male, and one male punched his head two or three times.  The males fled.

4. Charge 2 involved only you, D1.  At about 1 am on 16 March last, a male aged 30, PW2, was walking at the subway near Tsui Lai Garden, San Fung Avenue, Sheung Shui.  Three males, including you, D1, approached him.  As he walked past them, one grasped his neck and declared robbery.  He hit PW2 twice on the left ear.  You, D1, took PW2’s wallet from his rear trousers pocket and removed $120.  You then threw the wallet to the ground.  Another male took PW2’s mobile phone from around his neck.  The third male acted as a lookout.  They then fled.  PW1(PW2?) felt some pain in his left ear.

5. Charge 3 involved you both.  At about 11.30 pm on 20 March last, PW3, a male aged 47, was walking past the fire station on Tin Ping Road, Sheung Shui.  Three males, including both of you, walked towards him.  One male declared robbery and pushed him to the ground.  The males tried to search him but could not take his wallet as he resisted.  The three males then fled empty-handed. 

6. D1 was arrested by PW5, a police officer.  PW3 identified him as one of the robbers.  Under caution, you admitted the offence, saying you had no money.  In your favour, you also gave D2’s name and telephone number and you identified the third person as Ah Be.

7. Two police officers pursued the other male.  PW7 struggled with one male in an alley.  However, he escaped and left behind a 10-inch knife.  PW6 arrested you, D2, in the vicinity.  Initially, you denied involvement.  Under caution, D1 admitted all offences.  In respect of the 2nd charge, you admitted stealing a $20 banknote.  D2, you went on to admit your part in the 3rd charge.

8. Both of you have no previous convictions.  However, D2, you admitted to a previous caution for an offence of assault occasioning actual bodily harm. 

9. I adjourned the case and both of you were remanded in custody for a probation officer’s background report and a training centre report.  Those reports are now before me.  I have considered them.  They are extremely helpful.  They are extremely comprehensive.  To put the matter shortly, training centre is strongly recommended in each case.

10. On your behalf, Mr Sit asks me to follow that recommendation rather than imposing imprisonment which is a purely retributory sentence.  In mitigation, he points to your extreme youth, being just 16 and 17 years of age respectively, your lack of previous convictions, and the positive nature of the recommendation.  He has referred me to the reports which support your difficult upbringing, coming from poor families and achieving little academically.  In respect of the offences, he says you were not the ringleaders.  That was one Ah Be, who remains at large. 

11. Robbery, be it complete or attempted, is a very serious offence indeed.  D1, you are involved in three such offences, one is robbery and two are attempted, whilst you, D2, are involved in one offence of attempted robbery. 

12. I am conscious that the normal sentence, certainly in respect of a person of mature years is a substantial prison sentence.  However, I am obliged and comforted by the words of Miss Chong for the prosecution who invites me not to regard the guidelines of Mo Kwong Sang as a straitjacket and to treat each case on its merits.  I certainly accept and agree with that observation.

13. In this case, you both pleaded guilty at the first available opportunity, and you were both of ages that can be regarded as extreme youth, being 16 and 17.  In each case, you have no previous convictions though you, D2, do have a previous caution.  Of some significance and importance is the fact that in none of the offences can one be sure a weapon was involved.  Certainly, no weapon was ever actually used.

14. In Charge 1, D1, I give you the benefit of the doubt because in that charge, there is reference to “the third male held a 10-inch-long object in his hand.”  However, PW1 did not know what it was and it was not used.  In Charge 3, one of the males who fled left behind a knife, but it was never used or produced in the attempted robbery.  It is also clear from the facts that person was neither of you.

15. Also of significance is the fact that in none of the cases does it appear that any victim suffered any significant injury, and only in the 2nd charge was anything lost, that being $120 and a mobile phone.

16. I will accept that neither of you was the ringleader.  I will accept that was this mysterious person, Ah Be.  Also D1, although you were concerned with three offences, you were very co-operative when arrested by the police, giving the name and telephone number of D2 and trying to assist with Ah Be.  Therefore, I regard these matters as of some significance and some mitigation.

17. I turn now to the sentence itself.  Training centre involves a substantial period of detention.  This is on top of the 4 months you have already served on remand.  Training centre provides training, as its name suggests, and supervision on release.  It is a sentence with a degree of punitive effect, yet positive in nature.

18. In all the circumstances and the information before me, it is more relevant and necessary, given your ages, that you obtain this help.  Therefore, I do agree with Mr Sit.  Would you stand, please?  In each of the cases, that is the three cases you are involved with, D1, and the one case you are involved with, D2, you will each serve a period of training centre, and I hope that this assists you to change your lives.