HKSAR v. Chan Ka Sing and Others

DCCC843/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 843 OF 2012

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Reasons for Sentence

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1.Defendants, all three of you have pleaded guilty to a single joint offence of conspiracy to rob, contrary to sections 10(1) and (2) of the Theft Ordinance, Cap. 210, and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

2.You each admitted the brief facts and I convicted you on those facts.  What happened is as follows:-

At about 1.35 am on 17 July last, police controlling Po Shek Wu Road near Tai Tau Leng Tsuen, Sheung Shui, saw all three of you each wearing a mask at the entrance to the village. They observed you. They saw you wandering near the village for approximately 10 minutes. You then together approached a taxi on Po Shek Wu Road, so the police went up to intercept you.

The arrest of D1

3.D1, you were searched and a pair of gloves found in your bag.  Under caution, you admitted to planning to commit robbery with D2 and D3, you admitted it was you who suggested to D2 and D3 committing the robbery together.  Together you went to D3’s home to get the masks and gloves and afterwards came to the village to see if there was anyone to rob.  D1, you were arrested for loitering with intent.  Under caution, you admitted planning to rob and then asked for a chance.

The arrest of D2

4.Under caution, you, D2, admitted that D1 and D3 were your friends.  D1 had suggested that you would all commit a robbery that night and you had collected masks and gloves from D3’s home to cover your faces and not to leave fingerprints.  Your role in this would have been to act as the lookout.  You took out a pair of gloves from your trousers pocket and surrendered them to the police.  You too were arrested for loitering with intent and under caution said you knew it was wrong and you asked for a chance.

The arrest of D3

5.A search of you, D3, revealed a pair of gloves from your trousers pocket.  Under caution, you admitted to planning to rob with D1 and D2.  The mask and the gloves were to cover your face and not to leave fingerprints.  You admitted that D1 suggested committing robbery, that D1 would carry out the robbery while you, D2, acted as lookout, that is that you and D1 would carry out the robbery.  The gloves and masks were from your home.  D3, you were arrested for loitering with intent.  Under caution you admitted wanting to rob.  You asked for a chance as you had not been successful.

6.You were all each interviewed under caution later and repeated the admissions.  D1, you frankly added that you were the decision-maker.  The plan was that you would restrain the victim while D3 grabbed his possessions and D2 was to be the lookout.  D3, you confirmed this.

7.All three of you are of hitherto clear record, you have no formal convictions, therefore given your ages and this fact, I adjourned the case for reports. 

8.In respect of you, D1, I took a Probation officer’s report, a Community Services Organiser report, a report as to suitability for Rehabilitation Centre, Detention Centre and Training Centre. D2, I took a Probation officer’s report, a Community Service Organisers report, a report as to suitability for Rehabilitation Centre and a report as to suitability for Training Centre.

9.D3, you were somewhat older than the other two, only certain sentences are available to me, therefore I took a Probation officer’s report, a Community Services Organiser report and a Detention Centre report. 

10.As you recall, the only promise I made to you is that I would consider these reports, I reserved to myself the right to sentence in any way I thought just no matter what those reports recommended and I have placed that on the record.  I have read and considered the reports carefully. In respect of you, D1, you are not recommended for a Probation Order or a Community Service order and you are deemed unfit for Detention Centre.  You are deemed to be fit and suitable for a Rehabilitation Centre order or a Training Centre order, the former being recommended. 

11.D2, you were found suitable for a Probation Order but not a Community Service Order.  Additionally, you were not found to be suitable for Rehabilitation Centre or Training Centre as you are deemed to be drug-dependant. 

12.D3, you were not recommended for Probation or Community Service and you were deemed physically unfit for a senior Detention Centre.

13.To assist me, very helpfully the prosecution provided me with four sentencing authorities.  The first was R v Chan Wing‑kwok CACC447/1996; the second, HKSAR v Ting Chiu & Another, CACC174/2003; the third, HKSAR v Wan Ka-kit, CACC298/2005 and HKSAR v Ng Ching-chiu, CACC50/2004.  In respect of the latter, the prosecution were only able to produce an English translation of the headnote.  I do not intend to deal with these authorities in any great depth.  Whilst the third authority related to burglary rather than to conspiracy to commit robbery, the thrust of these authorities is to point to Training Centre or imprisonment as the normal sentence for this type of offence and the fourth authority, clearly says that Detention Centre was too short for this type of offence, Probation and Community Service orders being non-custodial sentence were out of the question.  I have taken all these authorities into account when reaching my sentence.

14.Mr Ip entered mitigation on behalf of all three of you.  First, he addressed me in relation to the four authorities.  Basically what he was saying, as I understand it, is that the present case showed marked differences from those quoted and that each case falls to be decided on its particular facts.  That is of course entirely correct and I would not quibble with that approach.  In general terms he urged me to take into account that the present charge was a conspiracy to rob, the robbery having been stopped prior to its commission.  He also submitted that the degree of planning was not high and that on the facts, the taxi approached, we could not be sure as to whether anyone was in it or not.  However, without objection or demur by defence, Mr Wong for the prosecution did clarify this to the extent that a driver was indeed on board that taxi.  Quite properly and correctly, Mr Ip made the point that the conviction for this present offence was based on your own admissions without which the prosecution would have had to prefer a lesser charge.  He said that each of you agreed with the facts and the contents of the reports and generally accepted the recommendations although he later he urged a different course for you, D3.  Later he would direct me to certain aspects of the report, especially the Probation officer’s report, which seemed to be contradictory to the facts.  That relates to the conclusions drawn.

15.Referring first to you, D1, he said you are 16 and you admitted to being the ringleader and pointed out that you were fit for both Rehabilitation Centre and Training Centre but not for Detention Centre.  He accepted that neither Probation nor Community Service was recommended for reasons given.  He said  you are remorseful and he submitted a letter in Chinese from the Social Worker of Outreaching Social Work Team.  The letter promised support and asked for mercy on your behalf.

16.In respect of you, D2, Mr Ip realistically accepted that the reports were not good.  You are 17 years of age and deemed to be drug-dependent, therefore you are not suitable for treatment in a Training Centre nor Rehabilitation Centre.  He squarely accepted that you had a poor work record.  He submitted that you were in fact unaware of being drug-dependant and now that you are aware of this you wished to be given the opportunity of voluntary drug withdrawal treatment via a Probation Order with appropriate conditions.  He submitted that this was not open supervision and the residential term would equate with any custodial term imposed under either a Rehabilitation Centre Order or a Training Centre Order.

17.Turning to you, D3, he submitted that whilst you were the eldest at 22, your reports were in fact the best.  He referred me to a letter from you, D3, in Chinese asking for leniency and expressing remorse and has today submitted a further letter from your mother expressing similar sentiments.  He told me that you have been much moved by the support you have received from your mother whilst on remand who has visited you regularly.  Your hope was eventually to go on some course to enhance your education level but at this point you lacked the funds to do so.  He suggested that I should ask for fresh reports in order to revisit the question as to whether you were suitable for Probation or Community Service.  He submitted that the conclusions drawn and the reasons for those conclusions by the Probation officer were not correct, that you were in fact a diligent worker.  He referred to your completely clear record and therefore asked for a further adjournment to reconsider.

18.I turn to the sentence.  Each of you is of clear record.  Each of you has pleaded guilty at the first available opportunity and I note that on arrest you were cooperative with the police, making full and frank admissions as to what you intended to do.  You are all young people, especially you, D1, you are only 16; you, D2, are 17; you however, D3, are somewhat older, 22. 

19.I accept that you, D1, was the one who conceived this scheme but D2 and D3 readily agreed to go along with you, that each of you accepted an integral role in the scheme of robbery.  D1 to restrain the victim, D2 to act as lookout and D3 to steal the goods.  The scheme relied on your mutual cooperation.  The use of masks and gloves shows the conspiracy was well-planned, in my opinion, and well-advanced, only thwarted by the timely police intervention.  You were stopped and arrested as you approached the taxi and there is nothing to suggest that you would resile from what you intended to do.  The only logical inference from these facts is that you would have proceeded to rob the taxi driver.  Whilst I accept there is no suggestion that you were armed, one aggravating feature is that you were acting as a gang, which I have already referred to at length.  You were acting in concert to commit a serious criminal offence. 

20.I would remind you that the maximum sentence for robbery is one of life imprisonment.  Whilst I did ask for various reports, as I said before, I did make it clear that I reserved to myself the right to sentence in any way I felt just and proper no matter what the recommendations were before me.  I am prepared to accept that this was far from the most serious offence of its type, however, a conspiracy to rob is by its very nature a very serious offence calling for a punishment of some severity.  In my opinion, looking at the facts, a Probation Order nor a Rehabilitation Centre Order would be sufficient condign.

21.Therefore, in respect of you, D3, I can see no point in taking any further reports.  In reaching my sentence, I have taken into account the full facts of the case, the mitigation advanced on your behalf, the contents of the reports before me and of course I have noted the three letters.  Your relative youth and clear record are also noted. 

22.The following sentences will be imposed.  D1, you are only 16 years of age, there is a recommendation for Training Centre, I make that order, you will go to Training Centre.

23.In respect of you, D2, you are not found suitable for Training Centre or Rehabilitation Centre.  In respect of you, D3, you are not found suitable for Detention Centre as you are unfit.  In each case I take as a starting point 3 years’ imprisonment reduced to 2, you will each go to prison for 2 years.