Case Detail

HKSAR v. TSANG LOK FU AND ANOTHER

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24754-EN-2004-01-14

HKSAR v. TSANG LOK FU AND ANOTHER

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HCMA000944A/2003

HCMA 944/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO.944 OF 2003

(ON APPEAL FROM TWCC 667/2003)

_______________________

BETWEEN
	HKSAR	Respondent

	AND

	TSANG LOK FU (D3)	1st Appellant
	CHAN YUN FAAT (D4)	2nd Appellant

_______________________

Coram: Hon Beeson J in Court

Date of Hearing: 10 December 2003 and 14 January 2004

Date of Judgment: 14 January 2004

______________________

J U D G M E N T

______________________

APPEALS AGAINST SENTENCE

1. I will now deal with the appeals against sentence. In sentencing, the Magistrate noted robbery was a serious offence and must attract a deterrent sentence. He considered robberies of this type were prevalent in the area. He noted that no weapon was used and force was minimal. The fear of being subjected to violence and being pushed around was sufficient to make the victim hand over the money.

2. He obtained reports for each appellant (who had clear records) having remanded them so such reports could be obtained. In each case, there was a background report and a suitability report as to fitness for detention in a Detention Centre, Rehabilitation Centre or Training Centre.

3. The reports showed that the 1st appellant had been the subject of a Care and Protection order for an offence committed in 2001. He had maintained a positive response towards counselling and his case was closed in April 2003. He had a caring and a supportive family. There was justified concern about his mixing with dubious peers. He was a school underachiever. He was thought to be suitable for the Detention Centre programme and a place was confirmed for him.

4. The Detention Centre report indicated that the 1st appellant's father was over-protective towards him and wanted a lenient sentence for him, although it was considered doubtful whether the father could supervise him effectively in the future. The officer believed that a short period of disciplinary training would be beneficial. On that basis, the Detention Centre Order was made.

5. The 2nd appellant's reports showed he was a school dropout who had been idling without a job since the end of 2001. His mother had started working around the end of 2000 and as a result, her supervision of the 2nd appellant had diminished. He had had frequent night activities since mid-2002. Because of his obesity, he was considered unsuitable for a detention in a Detention Centre, but was mentally and physically fit for detention in either Rehabilitation Centre or Training Centre. The officer considered him more suitable for detention in a Rehabilitation Centre and confirmed a place was available. The Magistrate made a Rehabilitation Centre order.

6. Having considered the circumstances of the offence and the contents of the various reports sought in respect of the appellants I was of the view that a Probation Order should have been considered as the initial sentencing option, but no recommendation was sought from the reporting officers. I agree that robbery is a serious offence and I respect the Magistrate's view that it is prevalent in the area. Nevertheless, given the ages and the particular circumstances of this robbery, it appears desirable that the appellants, with their families, should be given an opportunity to show they can work to improve their own behaviour and working history. For that reason, I sought a Probation Order for each appellant before deciding the appeal on sentence.

7. I have now had those reports. I note that the 1st appellant is unrepresented. The report has been explained to him by the interpreter.

COURT: Mr Kwong, I'll deal with you first.
MR KWONG: Thank you, my Lady.
COURT: You've seen the report?
MR KWONG: I have seen the report and I have personally explained the contents to the 16-year-old young man and also to his father and mother who are in court. My Lady, all the factual matters mentioned in the report are correct and I'm instructed to supplement on small matter. Towards the end of paragraph 7, there was a sentence which read, "He, the appellant, failed to look for a gainful employment after the present legal proceedings."
COURT: Yes.
MR KWONG: My Lady, in fact, concrete steps have been taken and I've just been shown this morning that an employer by the name "Explorer Paper Products Factory Limited..."
COURT: "Explorer..."
MR KWONG: Explorer Paper Products Factory Limited of Tsuen Wan had offered the young man a job at $4,000 a month commencing 1 February this year, and the title of the job is office attendant.
COURT: Is this a family connection or is it an ordinary firm?
MR KWONG: It's unconnected to the firm, my Lady, it's a job which the family is able to obtain for the young man.
COURT: Yes.
MR KWONG: My Lady, subject to the approval of the probation officer, he, the appellant, intends to take up the job.
COURT: You've seen the recommendations of the officer?
MR KWONG: He has not yet told the officer, but he will.
COURT: No, but you've seen the recommendations and the report?
MR KWONG: Yes, I have. The three conditions mentioned in the report are acceptable to the parents and to the appellants, especially the curfew, because that curfew would solve all the roots of the problem in nocturnal activities. And he -- and they also agreed to the periods recommended, namely, 18 months.
COURT: So your client is agreeable to going on probation?
MR KWONG: Yes, indeed.
COURT: Yes, is there anything that's relevant that you should tell me?
MR KWONG: No, apart from the fact that three of them are grateful for the last opportunity which my Lady is going to give them and they earnestly ask for it, ask for the Probation Order.
COURT: Yes, thank you, Mr Kwong.
MR KWONG: Thank you very much.
COURT: Mr Tsang, you will note that you have been examined again by the probation officer who has set out in great detail your family history and your social and employment background. He confirmed what was already known - that you have been mixing with what he termed dubious peers since 1999, and that includes triad peers. The conduct of your care and protection order is also described in paragraph 5.
The officer considers, obviously, that you are a borderline case. It is noticed in paragraph 10 that after this case occurred, your employment pattern as a lorry driver did change to become more stable. The officer believes that you do not have sufficient insight into your own wrongdoing and he notes that your alleged remorse seems to be shallow and limited. He considers that you lack perseverance and willpower to discipline yourself. Then comes the comment that you are a borderline case, but you may benefit from open supervision to a certain extent.
The officer then suggests that it is possible, if I approve, that you can have a 2-year probation period with special conditions, that you study and work as directed, that you obey a curfew from 10.30 at night to 6.30 am the next morning, and that you attend the groups or programmes run by the Community Support Service Scheme or other agencies that the officer might direct you to.
First of all, would you be agreeable to going on probation and would you be agreeable to abiding by those conditions?
1ST APPELLANT: Agree. Agree, and I would abide by the rules.
COURT: Yes. Take a seat, please. I want to speak to both of you about this matter. I am allowing the appeal against sentence to the extent of substituting for the orders that have been made previously, a Probation Order in respect of each one of you.
It is proposed in each case that it would be 2 years' probation supervision. You will each have to study or work as directed by the Probation Officer and in each case that you will stay at home from 10.30 at night to 6.30 the next morning unless you have the prior approval of the Probation Officer or you are in the company of one or both of your parents.
If the officer directs you to do so, you will attend a group or programme run by the Community Support Service Scheme or any other agency that you might be directed to. Do you both consent that you are agreeable to the order and the conditions?
1ST APPELLANT: I am willing.
2ND APPELLANT: I will abide by the rules.
INTERPRETER: A2 agrees.
COURT: Let me tell you that if anybody telephones your house or visits your house and finds that you are not on the premises between those hours, that will be a breach of probation and you will be brought back before the court and sentenced as if the probation order had not been made. I do not regard probation as a soft option because it is a 2-year commitment.
Let me tell you if there is any report from the Probation Officer that you are not behaving or not abiding by the conditions, this order will cease almost immediately because I am not wasting the time of a Probation Officer that can be better spent on people more worthy of it.
You know what to expect if I revoke the probation order. You will go to Training Centre which is the most likely place for you.
Now, whose parents are in court?
INTERPRETER: We have the mother of A1; parents of A2.
COURT: Parents of A2. In respect of the parents of Mr Chan, I would like to tell you that you are in charge of this child and he is to do as he is told. If you do not want him to spend the rest of his life in Training Centre, it is your responsibility to keep an eye on him and he is to be responsible and report to you as to what he is doing, where he is going, and what people he is seeing. If you are not satisfied with his behaviour, report him to the probation officer or come back to court and tell me about it.
In respect of the 1st Appellant...
MR MADIGAN: His mother is here.
COURT: Madam, you are here. The same thing applies to you, madam. If you are not satisfied with your son's behaviour - if he is causing trouble or not telling you what he is doing and where he is going - complain to the Probation Officer or come back to court. I note that when he was on the Care and Protection Order that there was some improvement in his behaviour when he was supervised, which is why I am prepared to let him have this chance on probation now. But I tell you that it is probably a last chance in his case, so if you are not happy with his behaviour, speak to the Probation Officer about it.
Yes, thank you, Mr Kwong. As I say, the appeal is allowed to the extent of the substitution of the Probation Order in the terms that I've explained to the defendants - appellants.
Yes, thank you, Mr Madigan; thank you, Mr Kwong.
MR KWONG: Thank you. Good day.

	(C-M Beeson)
	Judge of the Court of First Instance

Representation:

Mr P K Madigan, SGC of the Department of Justice, for HKSAR

Mr Tsang Lok-fu, 1st Appellant, in person

Mr Paul Kwong, instructed by Messrs Paul Kwong & Co., for the 2nd Appellant

HCMA000944/2003

HCMA 944/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 944 OF 2003

(ON APPEAL FROM TWCC 667/2003)

____________

BETWEEN
	HKSAR	Respondent

	AND

	TSANG LOK FU (D3)	1st Appellant
	CHAN YUN-FAAT (D4)	2nd Appellant

____________

Coram: Hon Beeson J in Court

Date of Hearing:10 December 2003

Date of Judgment: 24 December 2003

_______________

J U D G M E N T

_______________

1. The Appellants, together with two other youths, were charged jointly with one count of Robbery which was tried in the Magistracy. At the end of the trial, each Appellant was convicted. A1 (D3) was sentenced to a term in Detention Centre and A2 (D4) was made the subject of a Rehabilitation Order which required him to stay in a Rehabilitation Centre. The Appellants now appeal their convictions and sentences.

2. A1 applied the day before the appeal hearing to have the appeal adjourned, so he could apply for a transcript and instruct counsel. That application was refused as he had had since September 2003 to deal with those matters. He was represented at the appeal by counsel who, commendably, at very short notice, prepared perfected grounds of appeal against conviction and argued them.

3. There are two grounds of appeal for A1. The first is that the Magistrate erred in finding there was sufficient evidence of identity and the role played by A1 to support his conviction. The second ground, was that the Magistrate failed to consider properly, or attach sufficient weight to, discrepancies in PW1's evidence about the number of robbers, the timing and sequence of their actions and words in respect of the victim and the lack of any clear or sufficient evidence to link A1 with the robbery.

4. A2 (D4) was represented on appeal and filed perfected grounds of appeal against conviction. The first ground was that the Magistrate erred in law in finding that the A2 and two other males were involved in a joint enterprise to rob, and, in particular, the Magistrate failed to direct himself properly, or at all, whether there had been a meeting of minds amongst the A2 and the other males, to rob the victim.

5. Further, the Magistrate failed to consider properly or at all whether A2 was actually involved. There was evidence A2 was involved in a joint enterprise to rob, but in view of various discrepancies and problems with the evidence, it was submitted that the conviction was unsafe and unsatisfactory and/or there was a lurking doubt in all the circumstances whether A2 was actually involved in a joint enterprise to rob PW1.

Facts

6. The robbery took place on the podium of an estate in Tsuen Wan, when the victim, then aged 16, was robbed by four youths of $11.30 which was all the cash that he was carrying. The prosecution alleged and the Magistrate found that A1 and A2 were two of a party of four teenagers sitting on a bench when the victim walked past. The group demanded his attention and he was ordered, aggressively, to come over, which he did. He was pushed by one boy and told to take out all his money. He did so. One of the boys took the money and another boy demanded somebody search the victim's pockets and inspect his wallet. When that search produced nothing, the four boys went back down the steps.

7. PW1 returned to his school, told a teacher what had happened and the police were summoned. The police arrived at the podium about 20 minutes later and the victim identified the four boys to the police. A1 and A2 were part of the group and all four were arrested.

8. The Magistrate found that A1 was part of the group who approached the victim and that he was still at the podium when the police arrived. Further he admitted his presence at the robbery. The Magistrate was satisfied he was one of the robbers and did not believe his assertion that he was merely present, but not participating.

9. In relation to A2, the Magistrate did not believe his assertion that he was merely present and noted the circumstantial evidence of his having in his possession the exact amount in coins stolen from the victim in the denominations PW1 described. He admitted he pocketed the coins on the instructions of A1.

10. The victim's evidence was that he had given the police a description of the four youths. When he was returning to the podium, he saw the two police officers had already intercepted the four youths and he told the police officers they were the ones involved. There was no dispute that A1 and A2 were in the group intercepted by the police. Further, the victim told the police that the third male who had told one of the others to search his pocket, had long hair and glasses. The fourth male stood 6 feet away from him, but did not say or do anything. The victim could not identify any of the defendants in the court. The coins taken from him were 1 x $10 coin, 1 x $1 coin, 1 x10 cent coin and 1x20 cent coin.

11. In cross-examination, PW1 said the youths approached him in two groups of two and when he was asked to hand over the money, the second group of two had not arrived at that spot. A short time later, estimated at two to three minutes, the third man with the long hair and glasses asked one of the first group of two to search PW1's pockets. In cross-examination it was put to him that three of the men were involved in the robbery, but the fourth male was not and he replied that he was not sure. He said that after the robbery all four males left together and walked back in the direction from which they had come.

12. The Magistrate was sure that A1 and A2 were with the group of four which approached the victim. He found that the four persons who approached the victim were the same ones who had been seated at the podium and that all four men ascended the stairs approaching the victim in two groups of two. The Magistrate realized that the two groups came together after a gap of 2 to 3 minutes, but was satisfied that the victim handed over the money because the four males appeared very aggressive and he found, at that stage, that all four must have been nearby.

13. He was satisfied that A1, who was wearing glasses, had instructed one of the others to search. He took into account A2's admission that he was present and admitted pocketing $11.30 on the instructions of A1. The Magistrate was satisfied a joint enterprise had been established and did not believe the evidence given by A1 and A2 that they were merely present. He found that the robbery commenced when the first two of the group of four males approached the victim and continued when the second group of two arrived. He convicted the Appellants.

14. Despite the arguments put forward today in respect of A1 and A2, I cannot say the Magistrate was wrong in reaching the conclusion that he did. It was for him to evaluate the evidence having seen and heard the witnesses. Accordingly the appeals against conviction are dismissed for each of A1 and A2.

Appeal Against Sentence

15. In sentencing, the Magistrate noted robbery was a serious offence and must attract a deterrent sentence. He considered robberies of that type were prevalent in the area. He noted that no weapon was used and force was minimal; the fear of being subjected to violence and being pushed around was sufficient to make the victim hand over the money.

16. He obtained reports for each Appellant (who had clear records) having remanded them so such reports could be obtained. In each case there was a background report and a suitability report as to fitness for detention in a Detention Centre, Rehabilitation Centre or Training Centre.

17. The reports showed that A1 had been the subject of a Care or Protection Order for an offence committed in 2001. He had maintained a positive response towards counselling and his case was closed in April 2003. He had a caring and a supportive family. There was concern about his mixing with dubious peers. He was a school underachiever. He was considered suitable for the Detention Centre programme and a place was confirmed for him.

18. The Detention Centre report indicated that A1's father was over-protective towards him and wanted a lenient sentence for him, although it was considered doubtful whether the father could supervise him effectively in future. The officer believed a short period of disciplinary training would be beneficial. On that basis a Detention Centre Order was made.

19. A2's reports showed he was a school dropout who had been idling without a job since the end of 2001. His mother had started working around the end of 2000 and as a result her supervision of A2 had diminished. He had had frequent night activities since mid-2002. Because of his obesity, he was considered unsuitable for a detention in a Detention Centre, but was mentally and physically fit for detention in either Rehabilitation Centre, or Training Centre. The officer considered him more suitable for detention in a Rehabilitation Centre and confirmed a place was available. The Magistrate made a Rehabilitation Centre order.

20. Having considered the circumstances of the offence and the contents of the various reports sought in respect of A1 and A2, I am of the view that a probation order should have been considered as the initial sentencing option, but no recommendation was sought. I agree that robbery is a serious offence and respect the Magistrate's view that it is prevalent in the area. Nevertheless given the ages and the particular circumstances of this robbery it appears desirable that the Appellants with their families should be given the opportunity to show they can work to improve their own behaviour and working history. For that reason, I propose to seek a Probation Report for each Appellant before deciding the appeal on sentence.

21. Accordingly, I adjourn the appeal against sentence for a period of one month so supplementary Probation Reports can be obtained for each of A1 and A2.

	(C-M Beeson)
	Judge of the Court of First Instance

Representation:

Mr P K Madigan, SGC of Department of Justice, for the HKSAR

Miss Becky Wong, instructed by Messrs Ivan Tang & Co., for the 1st Appellant

Mr William Allan, instructed by Messrs Paul Kwong & Co., for the 2nd Appellant

COURT:	Mr Kwong, I'll deal with you first.

MR KWONG:	Thank you, my Lady.

COURT:	You've seen the report?

MR KWONG:	I have seen the report and I have personally explained the contents to the 16-year-old young man and also to his father and mother who are in court. My Lady, all the factual matters mentioned in the report are correct and I'm instructed to supplement on small matter. Towards the end of paragraph 7, there was a sentence which read, "He, the appellant, failed to look for a gainful employment after the present legal proceedings."

COURT:	Yes.

MR KWONG:	My Lady, in fact, concrete steps have been taken and I've just been shown this morning that an employer by the name "Explorer Paper Products Factory Limited..."

COURT:	"Explorer..."

MR KWONG:	Explorer Paper Products Factory Limited of Tsuen Wan had offered the young man a job at $4,000 a month commencing 1 February this year, and the title of the job is office attendant.

COURT:	Is this a family connection or is it an ordinary firm?

MR KWONG:	It's unconnected to the firm, my Lady, it's a job which the family is able to obtain for the young man.

COURT:	Yes.

MR KWONG:	My Lady, subject to the approval of the probation officer, he, the appellant, intends to take up the job.

COURT:	You've seen the recommendations of the officer?

MR KWONG:	He has not yet told the officer, but he will.

COURT:	No, but you've seen the recommendations and the report?

MR KWONG:	Yes, I have. The three conditions mentioned in the report are acceptable to the parents and to the appellants, especially the curfew, because that curfew would solve all the roots of the problem in nocturnal activities. And he -- and they also agreed to the periods recommended, namely, 18 months.

COURT:	So your client is agreeable to going on probation?

MR KWONG:	Yes, indeed.

COURT:	Yes, is there anything that's relevant that you should tell me?

MR KWONG:	No, apart from the fact that three of them are grateful for the last opportunity which my Lady is going to give them and they earnestly ask for it, ask for the Probation Order.

COURT:	Yes, thank you, Mr Kwong.

MR KWONG:	Thank you very much.

COURT:	Mr Tsang, you will note that you have been examined again by the probation officer who has set out in great detail your family history and your social and employment background. He confirmed what was already known - that you have been mixing with what he termed dubious peers since 1999, and that includes triad peers. The conduct of your care and protection order is also described in paragraph 5.

	The officer considers, obviously, that you are a borderline case. It is noticed in paragraph 10 that after this case occurred, your employment pattern as a lorry driver did change to become more stable. The officer believes that you do not have sufficient insight into your own wrongdoing and he notes that your alleged remorse seems to be shallow and limited. He considers that you lack perseverance and willpower to discipline yourself. Then comes the comment that you are a borderline case, but you may benefit from open supervision to a certain extent.

	The officer then suggests that it is possible, if I approve, that you can have a 2-year probation period with special conditions, that you study and work as directed, that you obey a curfew from 10.30 at night to 6.30 am the next morning, and that you attend the groups or programmes run by the Community Support Service Scheme or other agencies that the officer might direct you to.

	First of all, would you be agreeable to going on probation and would you be agreeable to abiding by those conditions?

1ST APPELLANT:	Agree. Agree, and I would abide by the rules.

COURT:	Yes. Take a seat, please. I want to speak to both of you about this matter. I am allowing the appeal against sentence to the extent of substituting for the orders that have been made previously, a Probation Order in respect of each one of you.

	It is proposed in each case that it would be 2 years' probation supervision. You will each have to study or work as directed by the Probation Officer and in each case that you will stay at home from 10.30 at night to 6.30 the next morning unless you have the prior approval of the Probation Officer or you are in the company of one or both of your parents.

	If the officer directs you to do so, you will attend a group or programme run by the Community Support Service Scheme or any other agency that you might be directed to. Do you both consent that you are agreeable to the order and the conditions?

1ST APPELLANT:	I am willing.

2ND APPELLANT:	I will abide by the rules.

INTERPRETER:	A2 agrees.

COURT:	Let me tell you that if anybody telephones your house or visits your house and finds that you are not on the premises between those hours, that will be a breach of probation and you will be brought back before the court and sentenced as if the probation order had not been made. I do not regard probation as a soft option because it is a 2-year commitment.

	Let me tell you if there is any report from the Probation Officer that you are not behaving or not abiding by the conditions, this order will cease almost immediately because I am not wasting the time of a Probation Officer that can be better spent on people more worthy of it.

	You know what to expect if I revoke the probation order. You will go to Training Centre which is the most likely place for you.

	Now, whose parents are in court?

INTERPRETER:	We have the mother of A1; parents of A2.

COURT:	Parents of A2. In respect of the parents of Mr Chan, I would like to tell you that you are in charge of this child and he is to do as he is told. If you do not want him to spend the rest of his life in Training Centre, it is your responsibility to keep an eye on him and he is to be responsible and report to you as to what he is doing, where he is going, and what people he is seeing. If you are not satisfied with his behaviour, report him to the probation officer or come back to court and tell me about it.

	In respect of the 1st Appellant...

MR MADIGAN:	His mother is here.

COURT:	Madam, you are here. The same thing applies to you, madam. If you are not satisfied with your son's behaviour - if he is causing trouble or not telling you what he is doing and where he is going - complain to the Probation Officer or come back to court. I note that when he was on the Care and Protection Order that there was some improvement in his behaviour when he was supervised, which is why I am prepared to let him have this chance on probation now. But I tell you that it is probably a last chance in his case, so if you are not happy with his behaviour, speak to the Probation Officer about it.

	Yes, thank you, Mr Kwong. As I say, the appeal is allowed to the extent of the substitution of the Probation Order in the terms that I've explained to the defendants - appellants.

	Yes, thank you, Mr Madigan; thank you, Mr Kwong.

MR KWONG:	Thank you. Good day.