HKSAR v. Chan Hong Kiu

DCCC 1380/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1380 OF 2011

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HKSAR

against

Chan Hong-kiu

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of robbery, contrary to Section 10 of the Theft Ordinance, Cap 210.

2.The particulars of the offence are that on 9^th November, 2011, together with 2 other persons, outside G/Fl, Ming Chau House, Kin Ming Estate, Tiu Keng Leng, in the New Territories, the defendant robbed Chan Tsan-lok of one mobile phone, valued at HK$2,000.  Facts admitted by the defendant disclosed that at about 3.20 a.m. on 9^th November, 2011, while Mr Chan, who is aged 20 years, was walking on the street in Kin Ming Estate, 3 unknown males, including the defendant herein, approached him.  Without saying anything, two of them hit Mr Chan on his head and face with fists and pushed him onto the ground while the third male snatched Mr Chan’s mobile phone.  The three males then fled.  A report was made to the police.  Mr Chan had swelling and abrasion on his lips and mouth and bruising on his face.  The defendant was stopped and searched on the street in Sheung Tak Street in Tseung Kwan O three days later and admitted having robbed Mr Chan.  He was then arrested.  He admitted under verbal caution that he had pushed Mr Chan to the ground and assaulted him with fists and kicks while the other two took Mr Chan’s mobile phone away.  He also admitted to having sold the mobile phone to a dealer in Mongkok.  In a subsequent video recorded interview, he admitted that he went to a convenience store with the two other males at 2 am on 9^th November, 2011. On their way back, they happened to see Mr Chan.  The two males with him suddenly ran towards Mr Chan and assaulted him with fists and kicks.  The defendant also joined the assault, during which he saw that the two other males took away Mr Chan’s mobile phone.  After some discussion amongst themselves later, the defendant agreed to bring the phone to Mongkok and sold it for HK$900. He gave HK$150 to one male, and HK$300 to the other, and kept the balance himself.

3.The defendant is now aged 19 years.  He lives here in Hong Kong.  According to his antecedent statement, he has attained Form 4 education, and was a delivery worker at the time of his arrest.  He has a previous conviction for possession of dangerous drugs in 2009, when he was sentenced to the Drug Addiction Treatment Centre.  He is the only child of his parents.

4.Section 109A of the Criminal Procedure Ordinance, Cap 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.

5.I adjourned sentence until today, so that I could have the advantage of a Background Report and Training Centre Report from the Correctional Services Department.  I did, however, emphasize to the defendant that I was keeping all options of sentence open to myself including imprisonment, which is the norm for offences of this nature. These reports are now before me and I have carefully considered their contents.  Counsel has also submitted letters written by the defendant’s parents and his employer and I have considered the contents of these letters.  I have also borne in mind all that has been urged upon me on behalf of the defendant.  The defendant was examined by a medical officer and found to be a drug dependant, and was not considered to be suitable for detention in a Training Centre.  The two reports before me are comprehensive reports that have set out the background of the defendant in great detail, and I do not propose to rehearse their contents herein.  Suffice to say that he has a caring and supportive family.  He became unmotivated in his studies when he was in secondary school and dropped out after completing Form 4.  He started to take ketamine when he was 15 under the influence of friends, and has been sentenced to the DATC in 2009.  He relapsed to taking dangerous drugs after the supervision period of the DATC had expired, and said he was taking ‘ice’ irregularly, although he had stopped after his arrest for the present offence and because of his skin problem.  Counsel has submitted photographs of the defendant showing the extent of eczema.

6.The interviewing officer at the Pik Uk Correctional Institution found the defendant to be polite but evasive in attitude.  The defendant told him that he and his friends were drunk and out of greed they robbed a male of his mobile phone.  However, the defendant told the interviewing probation officer who prepared the Background Report that on the material evening, he was upset as he had split up from his girlfriend.  He was with his friends and he asked them to each return to him the $300 they owed him so he could take his mother out for a birthday dinner.  They had all consumed beer, and went out to buy more beer and snacks at around 3 am.  On their return, they saw the victim, who the defendant said gave him an unpleasant look and commented on his hands which were badly irritated by his eczema.  The defendant’s friends rushed up to the victim.  He went over to push his friends away from the victim and they then fled the scene.  He said he only knew that one of his friends had snatched the mobile phone after they left the scene.  As his friends owed him money, they gave him the stolen mobile phone to sell, and he sold it for $900, keeping $450 and giving $450 to his friends.  He told the interviewing probation officer he had no premeditated plan to rob the victim.  His parents, too, told the interviewing officer that he had admitted his wrongdoing in hitting the victim, but told them he had not robbed the mobile phone from the victim, and that he had sold the stolen phone as his friends could not return the money they borrowed from him.  Mr Leung, who appeared for the defendant at the last hearing and today, confirms that the defendant maintains his plea and his admission of the facts that were read to him in court.

7.Robberies are serious offences.  No weapon was used in this case, but the defendant and two other males hit the victim on his face and head with fists and pushed him to the ground, and its only by the greatest good fortune that he was not more seriously injured.  It must have been an extremely distressing experience for him.  I do bear in mind that the offence would not have come to light had the defendant not made admissions when intercepted by the police – the only evidence against him was his own admission, and he co-operated fully with the police, even providing the police with the names of his two friends who robbed the victim with him.  I am told that no charge has been laid against the two friends as yet.  In my view, the defendant does deserve credit for his admission and co-operation with the police when he was intercepted, which reflect his genuine remorse.

8.The defendant is now aged 19 years.  He is still at an age when one could look for some kind of rehabilitation, but his drug addiction to a certain extent stands in the way of that.

9.This is what one would describe as an ‘unarmed robbery’ with the application of physical force.  The defendant acted with two others. The offence took place in the early hours of the morning. In R v Yau Kwok Tung [1987] HKLR 782, an unarmed robbery with two robbers, a starting point of 4 years’ imprisonment was held to be appropriate, although it was commented that 4 years would be at the top end of the tariff for an unarmed robbery but not excessive.  Having taken into account all the circumstances of the offence and of the defendant, I propose to adopt a starting point of 3 ½ years’ imprisonment, that is 42 months, in respect of this offence, and reduce that by one-third to reflect the guilty plea, which in my view is the greatest mitigation of weight before me.  I reduce the sentence by a further 4 months to reflect the defendant’s co-operation with the police and his remorse.

10.The defendant will therefore go to prison for 24 months.

11.Mr Leung has indicated that the defendant is ready to compensate the victim for the mobile phone, valued at HK$2,000. The defendant is ordered to pay to the victim herein, Mr Chan Tsan-lok, $2,000.