HKSAR v. Wong Tsz Hin

CAC C 38/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2012

(ON APPEAL FROM DCCC NO. 1181 OF 2011)

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BETWEEN

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Before: Hon Yeung VP, Lunn JA in Court

Dates of Hearing: 18 July and 14 August 2012

Date of Judgment: 14 August 2012

Date of Handing Down Reasons for Judgment: 21 August 2012

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The applicant (Wong Tsz Hin), a 16-year old boy, pleaded guilty to two counts of robbery before Deputy District Judge To (the judge) on 4 January 2012 and was subsequently sentenced to 4 years and 2 months’ imprisonment.

2.The judge adopted a starting point of 6 years for each of the two charges and reduced it to 4 years because of the guilty pleas.  The judge ordered 8 months of the 4-year sentence on the 2^nd charge to run consecutively to the 4-year sentence on the 1^st charge making a total sentence of 4 years and 8 months.  The judge reduced the total sentence by 6 months to 4 years and 2 months on account of the applicant’s young age.

3.Represented by Mr James Tze, the applicant sought leave to appeal against sentence.  At the end of the hearing on 14 August 2012, we granted the applicant leave to appeal against sentence and allowed his appeal.  We set aside the terms of imprisonment and sentenced the applicant to the Training Centre.  We indicated that we would hand down our reasons in due course and this we now do.

The Facts

4.The applicant, representing himself as a girl with the name “Kei Kei”, came to know the two victims (Chan and Leung, both 14 years old) through an online game platform in August 2011.  The two victims maintained frequent communications and had exchanged their mobile telephone numbers with the applicant.

5.On 13 August 2011, Chan asked “Kei Kei” for a date via MSN and it was accepted.  Chan was told to wait outside a public toilet in Pat Heung and was later told to go to 61H of Shui Mei Tsuen.  Chan was unable to find 61H and the applicant, pretending to be a villager, appeared and offered help.

6.Failing to find 61H, Chan returned to the public toilet to wait for “Kei Kei” and the applicant accompanied him.  At shortly after 6 pm the applicant entered the toilet and then suddenly shouted out for Chan.  When Chan entered the toilet, the applicant, holding a knife, pushed Chan into a cubicle and declared robbery.  The applicant took cash of $300, US$1 and a mobile phone (valued at $500) from Chan before fleeing and Chan made a report to the police. (The 1^st charge)

7.On 24 August 2011, the applicant, again pretending to be the girl “Kei Kei”, arranged, by SMS message, to meet Leung at Shui Mei Tsuen in Pat Heung on 30 August 2011.  At about 4 pm on 30 August 2011, “Kei Kei” telephoned Leung and told him to wait at the public toilet.

8.When Leung was waiting, the applicant appeared, wearing a white facemask and carrying a black backpack.  The applicant told Leung that he needed to go to the toilet and asked Leung to hold the backpack for him.  After they had entered the toilet, the applicant pushed Leung into a cubicle and took out a knife from the backpack to threaten Leung.  The applicant asked Leung if he had any money and a mobile phone.  Leung then surrendered cash of $1,600 and his mobile phone (valued at $2,680) to the applicant.  Leung made a report to the police after the applicant fled. (The 2^nd charge)

9.The applicant was arrested on 5 September 2011 and he was interviewed under caution.  The applicant admitted that he had used his ex-girlfriend’s account to register for an online game and through the account he came to know Chan and Leung.

10.The applicant said he used the identity of “Kei Kei” to communicate with Chan and Leung, and he thought that they both had immoral thought towards “Kei Kei”.

11.The applicant detailed how he arranged to meet Chan and Leung.  He said as both Chan and Leung had sinful thought about “Kei Kei” and wanted to have sex with her, he became angry and used a knife to rob both of them.

12.The applicant said he acted alone and had used the recorded voice of his ex-girlfriend to communicate with Chan and Leung.  He identified a knife with a newspaper sheath as the one used by him in the robberies.

13.The mobile phone taken from Leung, sold by the applicant to a phone shop (Sun Fai Telecom) for $450, could not be recovered. The applicant was positively identified by Chan at an identification parade.

The Applicant’s Background

14.The applicant, aged 16, was a student and he had a clear record.  His parents divorced when he was about 7 years old and he was brought up by his mother alone.  The applicant presented a bundle of clemency letters written by himself, his friends, his teachers and his school principal.  They said the applicant was lively, honest and kind-hearted.

The Judge’s Approach

15.The judge pointed out that the applicant had committed two robberies with the use a knife and took the view that a deterrent sentence was called for.

16.The judge emphasized that the offences were planned when the applicant enticed the victims to go to a remote place before robbing them inside a toilet.

17.The judge referred to Mo Kwong-sang v R [1981] HKLR 610 and took the view that the starting point for the two offences should be 6 years and that a global starting point should be 7 years.

18.The judge did not consider that any pre-sentence reports would serve any purpose and he took the view that, in view of the gravity of the applicant’s crime, the only possible sentence was a sentence of imprisonment.

19.The judge therefore sentenced the applicant to 4 years and 2 months’ imprisonment.

The Grounds of Appeal

20.Mr Tze argued that the judge should not have ruled out other sentencing options, such as a Training Centre Order, which would better serve the rehabilitation of the applicant in view of his age and clear record.  Mr Tze suggested, in any event, the global starting point adopted by the judge was manifestly excessive.

The Respondent’s Position

21.Mr Kuan suggested that these were carefully planned robberies involving the use of a knife.  He argued that the seriousness of the case called for an immediate term of imprisonment and that the calling for reports on the background of the applicant was a waste of public resources.

Discussion

22.Robbery of course is a very serious offence and it carries a maximum sentence of life imprisonment.

23.We also agree with the observation that the offences in question were carefully planned.  Despite his young age, the applicant was crafty enough to use the identity of “Kei Kei” to entice Chan and Leung to a remote place in order to rob them.

24.The applicant used a knife to threaten the victims.  Whilst he did not actually use any physical violence on the victims, it requires little imagination to appreciate the fear that the victims must have been put through.

25.On the other hand, this was not a very bad case of the type as the applicant acted alone and had inflicted no injury to either Chan or Leung.  The case only involved a small sum of cash and two mobile telephones.

26.Further, the applicant was only 16 at the time of the offences.  He had a clear record and had pleaded guilty to the charges. The applicant’s friends, teachers and his school principal supported him.  The offences in question were serious, but we could not agree with the judge’s approach that the only option was a significant terms of imprisonment.

27.We were aware that in S for J v Li Man-biu and others (CAAR 4/2000), the Court of Appeal took the view that in very serious cases of robbery, the only proper sentence would be long-term imprisonment even for young offenders.  That case involved two 17-year old boys who committed a robbery with an older man of 25.  Two of the robbers, one armed with a pistol and one holding a beef knife, robbed a jewellery and money exchange shop of about RMB80,000.

28.The Court of Appeal, in sentencing the two 17-year old boys each to 6½ years’ imprisonment, commented:

“We have no doubt that for an offence of this seriousness, it must be regarded as almost inevitable that a substantial sentence of imprisonment will follow. The youth, unless it is extreme youth, of those who commit offences of this kind has not provided strong mitigation in the past and we consider that it could only rarely do so now for offences of this seriousness.”

29.It was right to point out however that the approach adopted in Li Man-biu (supra) was considered suitable only because of the very serious nature of the offence.  It was not suggested that other forms of punishment, such as a Training Centre Order or a Detention Centre Order was never suitable for young offenders in robbery cases.

30.Indeed in R v Cheung Wing-wai and others [1993] 2 HKCLR 139, the Court of Appeal expressly approved Training Centre Orders for two defendants (aged 16 and 17 respectively) who had pleaded guilty to serious charges of robbery and handling stolen goods.  Those defendants targeted the Manning Store in Repulse Bay and the Wellcome Supermarket in Nathan Road and in each case, staff and customers were threatened with large knives and were gagged and tied.  Senior staff were forced at knife point to open safes from which considerable sums of money were taken.  Staff and customers also had their valuable and documents of identity taken from them.

31.In making training centre orders against the two young defendants, Bokhary JA (as he then was) said:

“…it must be remembered that detention in a training centre can be for up to three years and that even then there can be post-release supervision for up to another three years thereafter. The principal purpose of detention at a training centre is of course rehabilitation. But there can be no doubt that rehabilitation under such circumstances carries with it considerable punitive and deterrent elements.

…It would appear that these two young men have not remained unscathed by their association with older men of criminal disposition; and it would be unrealistic to assume that they would not come under the influence of such characters in prison despite everything that the prison staff would of course do to protect them from the same. We are much more attracted to a means of treatment under which their contact with persons much older than them will be limited to prison staff and welfare personnel who will steer them in no direction except the right direction.

If these two young men are sent to training centre, then this is what they will have to realize about the situation when they come out: one, they will be much older; two, they will have serious criminal records already; and, three, they will have been the beneficiaries on one occasion of the mercy of the court.  If after all of that and in those circumstances, they commit serious offences again, they are likely to go to prison for a very, very long time.”

32.Whilst it was correct to point out that those two defendants were under the influence of two more mature men who were ex-police officers as emphasized by Mr Kuan, the offences that they had committed were much more serious than those committed by the applicant.

33.In view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.

34.We were persuaded that the judge was wrong to have ruled out the option of a Training Centre Order or a Detention Centre Order.

35.We had therefore decided to call for a Detention Centre report, a Training Centre report and a Probation Officer’s report before sentencing the applicant.

36.The Probation Officer’s report indicates that the applicant had learnt a lesson and was remorseful of what he did.  He has good family support and a good chance of rehabilitation.  The Detention Centre/Training Centre Suitability Report confirms that a period of disciplinary training coupled with statutory supervision would be beneficial to the applicant and that he is unsuitable for detention in a Detention Centre, but is mentally and physically fit for detention in a Training Centre.

37.Despite the serious nature of offences committed by the applicant, we were persuaded that a Training Centre Order was suitable for the rehabilitation of the applicant.  We therefore granted leave to the applicant to appeal against sentence.  Treating the application as the appeal proper, we allowed the appeal and set aside the sentence of imprisonment and in substitution therefore, we made a Training Centre Order in respect of both charges against the applicant.

Mr Franco Kuan, SPP of the Department of Justice, for the Respondent

Mr James Tze, instructed by the Director of Legal Aid, for the Applicant