HKSAR v. Yan Tsz Chun and Another

DCCC91/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 91 OF 2010

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Reasons for Sentence

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1.D1 and D2 are jointly charged with 1 offence of "Burglary" (Charge 3) and 1 offence of "Conspiracy to rob" (Charge 4). They pleaded guilty to both charges. They also face another charge of "Conspiracy to rob" (Charge 1) and 1 charge of "Theft" (Charge 2). The Prosecution agreed to leave Charges 1 and 2 in the court file.

Summary of Facts

2.At all material times, Madam WONG (PW1) was residing at the housing unit particularized in Charge 3. In the morning on 7 March 2009, PW1's home was burgled. She found the following items missing: $600 cash, 2 keys to her safe deposit box, some medical cards in her name, 4 watches, 1 jade ring and 1 metal box containing RMB800.

3.The Police lifted some fingerprints at PW1's home. It was later discovered that some of those fingerprints belong to male LO Chun-kit. After investigation, the Police arrested LO Chun-kit and another male LO Kai-sing.

4.Based on the information provided by LO Kai-sing, the Police arrested D1 and D2 in December 2009.

5.Under caution, both D1 and D2 admitted that on 6 March 2009, upon the suggestion of LO Chun-kit, they, LO Chun-kit and LO Kai-sing all agreed to take part in a burglary. D1 and LO Chun-kit obtained the keys to PW1's home from an unknown person in Shatin. LO Kai-sing and D2 went to Yau Ma Tei to gather a few knives and hoods. At about 9:00 am on 7 March 2009, after PW1 had left her home, D1, D2 and LO Chun-kit entered the flat to steal, whereas LO Kai-sing acted as a look-out nearby. After the burglary, LO Chun-kit gave D1 and D2 each $1,000 as their rewards. This is Charge 3.

6.Regarding Charge 4, D1 and D2 both admitted that one day between February and March 2009, they, LO Chun-kit and LO Kai-sing planned to rob a female cashier of a mahjong game centre named "KC City". LO Kai-sing told the others that he used to work at KC City and was familiar with the time and location of its staff depositing cash into the bank. The group agreed that LO Kai-sing would identify the female cashier; LO Chun-kit would then notify D1 and D2 to rob her. The 4 of them were in position to carry out the plan, but did not do so at the end.

Mitigation & Sentence

7.D1 is now 17. He has 1 previous conviction dated August 2007, which is "Robbery". He was sentenced to 18 months Probation. D1 studied up to F.4 and left school in April 2009 since he was unable to catch up. Thereafter, he worked as a cafe helper, garage apprentice and godown workman.

8.Ms. CHENG informed me that LO Chun-kit pleaded guilty to "Burglary" and was sentenced to 2 years imprisonment, whereas LO Kai-sing pleaded guilty to "Handling stolen goods" and received 7 months. Mr. TAM for the Prosecution confirmed that the Police initially did not know about D1 and D2's involvement in Charge 3; they were not charged until LO Kai-sing had pleaded guilty and given a non-prejudicial statement. Ms. CHENG stressed that D1 has all along been cooperative and made full and frank admissions. Regarding Charge 4, Ms. CHENG explained that the 2 LOs were not charged since there was no evidence. The only evidence against D1 came from his own admissions. The contents of the mitigation letters submitted by Ms. CHENG are noted.

9.D2 is now 18 and has a clear record. Until being remanded in custody, he was a F.4 student in a school which serves "marginal" students. D2 came to Hong Kong from the mainland in 1993 to stay with his father and paternal grandparents; however, D2's mother did not move to Hong Kong until December 2000. The relationship between his parents deteriorated. They were divorced in June 2009. D2 stayed with his mother and D2's younger brother was granted to his father. In early 2010, D2 and his younger brother switched places. What Ms. CHENG has said about the events leading to the arrest of D1 also applies to D2. The contents of the mitigation letters submitted by Mr. Omar are noted.

10.Due to their age and background, a series of pre-sentencing reports were obtained for both D1 and D2. D1 is found suitable for detention in both Rehabilitation Centre and Training Centre; the Probation Officer recommends Rehabilitation Centre for him. D2 is found suitable for detention in Rehabilitation Centre, Detention Centre and Training Centre; the Probation Officer recommends Detention Centre for him.

11.Today, both Ms. CHENG and Mr. Omar invited me to follow the recommendations made by the Probation Officer. Ms. CHENG submitted that the recommendation is made by a professional after a thorough assessment of all the relevant circumstances. Mr. Omar submitted that when the court considers whether to send D2 to a Detention Centre or a Training Centre, it should bear in mind the usual guilty plea discount which would normally be given to a person sentenced to a prison term. In order to give D2 the proper credit for pleading guilty, the court should consider the place which carries a shorter period of detention.

12."Burglary" and "Robbery" are serious offences, of which immediate imprisonment is an almost certain consequence. There are clear sentencing tariffs for both offences. But for their young age, I would have had no hesitation sentencing D1 and D2 each to a prison term according to the tariffs. However, in this case, I cannot overlook their need for rehabilitation. In my view, both D1 and D2 must be subject to some form of disciplinary training in a closed setting.

13.What troubles me is Charge 4. I note that the intended robbery was not carried out, but it is plain that the 4 of them did manage to devise a feasible plan to rob the female cashier. The target was clear to them and each culprit's role was defined, with specific tasks allocated. I must treat this as a serious matter, even though the only evidence against D1 and D2 in this charge came from their own admissions.

14.Had there not been Charge 4, I would feel comfortable sentencing D1 and D2 to Rehabilitation Centre and Detention Centre respectively. After careful consideration of all relevant factors, including the usual period of detention in different correctional institutions, I take the view that Training Centre is an appropriate and just punishment for D1 and D2, which is commensurate with the seriousness of both charges. Accordingly, I will make a Training Centre Order against D1 and D2, which will be their sentences for both Charges 3 and 4.