HKSAR v. Chan Ka Leung and Another

DCCC1232/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1232 OF 2011

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Reasons for Sentence

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1.Two weeks ago, D1 and D2 pleaded guilty to one charge of robbery (1st charge). D2 is also facing Charge 2 for theft. He pleaded not guilty to this charge which was ordered to be left in court file and not to be proceeded without leave of the court. I called for DC, RC, TC reports of both defendants. The reports are now available.

2.In summary, the facts admitted by both defendants reveal that at around 1.20 am on 21 May 2011, a 13-year-old boy, Ho Cheuk-kwan, the victim, was walking along Tin Wu Road, Tin Shui Wai, holding a mobile phone.  He felt something hit his right leg from behind and he saw D1 and D2 got off from their bicycles.  D1 then grabbed the victim’s neck with his right hand from behind while D2 walked to the front of the victim and asked if he was anyone’s follower.  After the victim replied in the negative, D1 hit the victim’s stomach and chest several times with his hand.  D2 snatched the phone from the victim’s right hand before they fled.

Background and Mitigation

D1

3.D1 is aged 18, single, living with his parents and elder sister.  He was a salesman before his appearance in court for his case.  He has one previous conviction for unlawful sexual intercourse and indecent assault in August 2010 when he was placed on probation.  Solicitor for D1 tells the court that D1 suffers from a disease called narcolepsy which is a rare sleep disorder presented with excessive daytime sleepiness.  Because of the disease, D1 has obtained the registration card for people with disability issued by the government.  And also because of this illness, he could not further his study after he completed Form 5 education in 2010.  He got zero marks in all the seven subjects taken in the HKCEE.  Since then, he worked as delivery worker and salesman.

4.In mitigation, his solicitor tells the court that D1 is now deeply remorseful for the offence he committed.  He has cited a few cases in his written submission for mitigation as to the proper starting point of imprisonment, if ordered.  He asks the court to accept the recommendation of the assessment officer of the CSD to make a detention order in the RC. 

D2

5.D2 is aged 19, single, living with his younger sister and his parent who has divorced her husband when D2 was aged 14.  D2 was a temporary worker at a godown, earning $500 a day before he committed the present offence.  He received education only up to Form 4.  He has one previous conviction for possession of pirate discs and was placed on probation for 12 months in June 2011.  

6.In mitigation, his solicitor informs the court that D2 has indicated his intention to act as prosecution witness against D1. He submits that as D2 did not use actual violence in the case, the role played by him is relatively minor.  D2 has also performed voluntary work in visiting aged people when he was still at school.  He tells the court that D2 is now very remorseful.  He also refers me to some cases in the consideration of the proper starting point of imprisonment if that is ordered.  He asks me to adopt the recommendation of the assessment officer of the Correctional Services Department to make a detention order either for RC or TC.

Reason for Sentence

7.Robbery is a serious offence and a term of imprisonment is usually called for.  When the two defendants committed the present offence together at the small hours of the morning and the victim was only 13, the offence becomes more serious.  It was an unarmed robbery but actual violence was used.  D1 grabbed the neck of the victim with his right hand from behind and hit the victim’s stomach and chest several times.  As the admitted facts does not disclose the injury of the victim, I shall assume that the injury of the victim is only minimal. 

8.Authorities have been cited in respect of the proper starting point for imprisonment, and it is submitted that the appropriate starting point should be 4 years’ imprisonment.  I think it is unnecessary to repeat the authorities submitted to this court.  Suffice it to say that for cases of nature and circumstances like the present case, imprisonment of substantial term should be imposed.  If imprisonment is appropriate, I would have taken not less than 4 years as a starting point for each of the two defendants.

9.Section 109A of the Criminal Procedure Ordinance is not applicable to the defendants because robbery is an excepted offence in schedule 3 of that ordinance.  Yet, given their age and their background, the court would still consider how best it is to deal with them, given the nature and circumstances of the case, the interest of the community and the defendants’ personal circumstances.

10.D1 and D2 were 17 and 18 respectively at the time of the offence.  They were quite young at the time.  However, it has been well-recognised that youth may pale into insignificance because of the magnitude or prevalence of the offence.  Although rehabilitation of a young offender is important, this cannot be the sole consideration of the sentence. Interest of the community must also be considered, including the prevention of crime.  

11.In the written submission in mitigation submitted by solicitor for D1, it is urged that the court should call for CSO, PO, background and YOAP reports.  I declined the request.  I am of the view that PO and CSO are too soft as options which cannot serve the interest of the public.  As PO and CSO are not suitable options, YOAP report is therefore unnecessary at this stage. Background report is also unnecessary because the DC, TC, RC reports would have given sufficient background information to this court to consider the personal circumstances of both defendants. 

12.These reports are now available.  It is recommended that a period of disciplinary training coupled with a term of statutory supervision would be beneficial to both of them.  Because of their medical condition, both of them are not fit for detention in a DC.  They are both found suitable for detention in RC or TC.

13.The assessment officer of the Correctional Services Department, having considered two defendants’ behaviour and attitude while on remand, considers that both of them are more suitable for detention in an RC. 

14.I have considered all the mitigation put forward for both defendants, in particular, their plea of guilty, their young age, their confession during investigation and their remorseful attitude.  Moreover, D2’s indication to assist the prosecution as a PW may have avoided the trial of D1. 

15.Having considered all the circumstances, I am satisfied that it is a suitable case for both defendants that they should not be sentenced by way of imprisonment.  A period of disciplinary training followed by statutory supervision for both of them would serve not only the defendants’ interest but also the interest of the community. 

16.As both of them are not fit for detention in a detention centre, the question remains whether they should be trained in an RC or a TC.  The two institutions have very different regime and the period of detention is quite different.  For the RC, in the first phase of the programme, the young offender will be detained at an RC for between 2 to 5 months followed by a second phase of programme of residence in a halfway house which will last between 1 to 4 months.  The period of possible detention is indeed a very short one compared to the imprisonment term they would have to face if they were adults.

17.It should also be noted that section 4(2)(e) of the Rehabilitation Centres Ordinance, Cap.567 provides as one of the criteria for the detention order that the suitable candidate “is apparently an offender for whom a short-term custodial sentence is appropriate.”  If the defendants are sentenced to imprisonment for the present offence, the term of custodial sentence definitely will not be a short one.

18.In my view, the possible period of detention in the RC cannot reflect the seriousness of the offence and serve the interest of the community.  On the other hand, the two defendants are young people without sufficient education background and vocational skill to secure stable employment in the future.  Both of them lack sufficient parental supervision and self-discipline.  They associated with triad peers.

19.I am of the view that a detention in an RC would not be sufficient to impress them the seriousness of the offence and to bring them back to the right track.  On the contrary, a detention order in a TC would serve this purpose.  The detention in TC would allow them sufficient time to reflect.  They can also acquire useful skills to improve their prospect of a regular employment in the future and reintegrate into society.

20.I am aware of the relevant considerations for an order of detention in a TC as stated in HKSAR v Wong Chun Cheong FACC No. 9 of 2000.  Having considered everything said by the solicitors for both defendants, I am of the view that an order for detention in the TC for both defendants would be in the interest of the defendants and the community and also for crime prevention.  I make the order accordingly.