HKSAR v. Lau Ka Yiu and Another

DCCC334/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 334 OF 2011

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Reasons for Sentence

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1.The 1st Defendant pleaded guilty to Charges 1 and 2. The 1st Charge being robbery contrary to Section 10 of the Theft Ordinance. The particulars are that the defendant and the 3rd Defendant, along with others not arrested, robbed PW1 of one PSP and a necklace with a ring.

2.Charge 2 is an assault with intent to rob contrary to the same section.  The particulars are that the 1st Defendant and the 2nd Defendant, as well as others not arrested, assaulted a Mr Law, PW2, with intent to rob him. 

3.The 3rd Defendant, who I will also sentence today, pleaded guilty to Charge 1, the robbery charge.  The assault with intent to rob was left on the court file. 

4.The 2nd Defendant who was sentenced yesterday pleaded guilty to only one charge, that is, Charge 2.  Charge 1, which he originally faced was left on the court file.  After looking at his reports and hearing mitigation, the 2nd Defendant was sentenced to probation yesterday. 

5.The facts of this case are that in the early hours of the morning on 21 February this year, PW1 and 2 were together walking near Tuen Mun Cultural Square when they were approached and attacked physically.  The group that attacked them included the defendants and others not arrested.  When PW1, the victim of Charge 1, was assaulted the PSP dropped out of his pocket.  It was later found by the police on the 1st Defendant.  The assault lasted several minutes and all the defendants, and others not arrested, ran away.  Three defendants of this case were arrested together when they were stopped by the police after a chase.  Luckily PW1 and PW2 did not suffer any serious injuries. 

6.Under caution, the 1st Defendant admitted that he had assaulted both the victims and had taken the first victim’s PSP.  The 3rd Defendant admitted he was present when PW1, the victim of Charge 1, was assaulted.  Both defendants are now 19 years old.  The 1st Defendant is not a man of clear record.  He has one previous conviction.  In October 2006 he was sentenced to being a member of a Triad Society and sentenced to 12 months probation.  That case was dealt with in the Tuen Mun Magistracy.  The 3rd Defendant was, until this case, a man of clear record. 

7.Because of the ages of the defendants, and the pleas, I called for a full range of reports including a Young Offender Assessment Panel Report who had the benefit of seeing each defendant and reading all the array of reports.  After the reports had been submitted to court the recommendations are as follows.  The 1st Defendant is deemed suitable and an appropriate sentence would be a Detention Centre Order.  The 3rd Defendant is also deemed suitable for a Detention Centre Order but, unlike the 1st Defendant, the probation officer would accept him to serve a Community Service Order.

8.I have heard mitigation and I have seen mitigating letters.  The 1st Defendant has written a letter himself, submitted today, expressing his remorse as well as the fact that he has disappointed his parents and the fact that they have had to -- he feels very sorry that they have had to endure him being charged and detained travelling long distances to visit him whilst in custody.  And he is grateful that they will continue to support him.  All they ask for from him is his willingness to reform, to turn over a new leaf and act sensibly.

9.The 3rd Defendant has mitigating letters as well.  In the previous hearing a letter was submitted from a previous class teacher who expressed shock that the defendant committed this offence and explained that when he was at school, although he was not a talented student, he would try his best and was helpful as well as considerate.  And, although he dropped out of school due to the academic pressure, he chose to better himself by taking some vocational courses.  Mr Kon having seen the 3rd Defendant and spoken to the 3rd Defendant about this offence genuinely believes that he is remorseful. 

10.Today I have had further letters, one from the 3rd Defendant and one from his parents and sister.  The 3rd Defendant has also expressed his remorse personally, explained his behaviour, the fact that he was easily led astray without thinking of the serious consequences and will now exercise self control, stay away from undesirable peers, listen to his family and he is grateful for his family’s support.

11.Where the 1st Defendant is concerned, I accept that his remorse must be genuine because he pleaded guilty and agreed to assist the prosecution if necessary.  And, I said, on the last occasion that that was a material factor in me calling for reports, but in particular, including a probation officer’s report.  Unfortunately it has come back with the probation officer unwilling to accept the 1st Defendant for either probation or community service.  I do not intend to repeat the contents of the report but the probation officer is ultimately of the view that the 1st Defendant is need of residential training in a disciplinary setting at this stage of his life in order to help him learn to live a regular life and understand the importance of observing law and order. 

12.The Young Offender Assessment Panel is of the same opinion.  They were of the view that, “The 1st Defendant is a loosely disciplined person who is in need of a short, sharp, shock.”  Since the probation officer would not entertain the 1st Defendant, in my view, I do not have much alternative and he will be dealt with differently to the other defendants but there is a difference in their backgrounds and mitigation. Firstly, the other defendants, prior to this case, had a clear record plus they faced one charge not two. 

13.Defendants, please stand up.  I have taken into account everything said on your behalf as well as all the details of the report, as well as your pleas.  However, I will follow the recommendations of the reports. 

14.3rd Defendant, as I said earlier, the probation officer will consider a Community Service Order mainly because of her view that, although you have become rebellious, you’re not a deep seated delinquent, that you have no Triad background or drug problem and you want to continue to study. 

15.1st Defendant, for Charges 1 and 2 will be sentenced to a Detention Centre Order to be served concurrently for each charge.  Have a seat please. 

16.3rd Defendant you are sentenced to 240 hours of Community Service Order for Charge 1.  If you do not complete this order to the satisfaction of the probation officer, including adhering to all rules and regulations involved in this Community Service Order, you will be brought back to court.  If you do not complete the order to the satisfaction of the probation officer, you will be brought back to court.  The consequence of that will be the court will discharge this Community Service Order and you will be re-sentenced to a Detention Centre, most likely a Detention Centre Order. 

17.I am going to call for a progress report and I am going to adjourn this to 6 January before me at 9.30.  If it is a poor report I may consider then discharged the Community Service Order.  If before four months is up and there are problems, the probation officer will automatically require you to appear before the court.  Do you understand?

3RD DEFENDANT: I understand.

18.You will be given details later of which probation officer to see and when.  Have a seat.