R. v. LAU KIN SHING

IN THE COURT OF APPEAL

1995, No.244
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced one count of robbery which alleged that inside Kowloon Park on 15th November 1993 near the entrance at Kowloon Mosque, he and Yau Kin-wah together with other unnamed persons robbed Cheung Kin-wai of one wallet. He in the outcome pleaded guilty to a charge of common assault and was ordered by Filan Chua D.J. to be detained in a training centre. He now seeks leave to appeal against that order.

2. Before turning to see how that plea of guilty came about, we think it important to recite the facts surrounding the offence.

3. The victim and his girlfriend were sitting on a bench inside Kowloon Park chatting. They were surrounded by 5 or 6 males, one of whom alleged that the victim had stared at him. The group then commenced to punch the victim with fists and to kick him. One of the assailants took his wallet. The victim in the course of this beating missed his footing, rolled down a staircase and lost consciousness. The group then fled. So much for the facts.

4. In order to understand how the plea came about and why the trial judge took the course she did it is necessary to look in extenso at her reasons. They are as follows:

"The defendant who is now 19 years old is the second youngest child in a family with ten children. The father was a gardener working for the Government and both parents because of the size of the family found themselves unable to exercise much discipline over the children. The defendant and two of his brothers soon went astray. He, like so many youths of similar background, left school before he completed Form II and soon became entrenched with friends who idled and experimented with drugs.

There is no desire to work and each time he started an apprenticeship, he served too short a time for him to learn anything. From the time he left school four years ago he has been a gold mounting apprentice for a month, a plumber's apprentice for three months. He worked as a kitchen worker at Kentucky Fried Chicken for about three months and worked as a part-time delivery for another few months. That is the sum total of his working life. The rest of the time he associated with friends who had a triad association. In 1994, not surprisingly he started to take heroin. He already has one drug conviction and in November he fainted on the street from a drug overdose.

The company he keeps leaves much to be desired. A group of young teenagers terrorised courting couples in the early hours of morning while they sat in parks in Tsimshatsui. The man was set upon and assaulted before being robbed."

She then referred to the original four charges of robbery that were levelled against the applicant and another defendant.

5. She recited that the victim received many bruises about his head, having been punched and kicked by the gang, that there was a great deal of blood and that, according to the medical report, there was a suspected fracture of the nasal bone. The victim, the judge said, confirmed there was a fracture. She then detailed how the applicant was apprehended and went on:

"By the time of trial, on the 7th of February 1995 the victim and his girlfriend had parted company, and although he gave evidence, his girlfriend, a vital witness could not be located. After legal submissions, I ruled that although the authorities seemed divided on the subject, the better view is, the evidence of the police witnesses of the girlfriend's identification is hearsay and in the circumstances of this case cannot be admitted as part of the res gestae.

The upshot of all these is that D1 was acquitted of that charge, one could, say not on the merits but on technically.

Mr. Suen, the Prosecutor, did not add as an alternative to the first charge, a charge of assault occasioning bodily harm or wounding. As another of those are anomalies found in the law which the Legal Department has not got round to correcting, the statutory alternative to a charge of robbery is common assault. D1 had a vigilant counsel in Mrs. Lisa Remedios and he pleaded guilty to this charge which the Crown accepted who then offered no evidence on the other three charges."

6. The judge then went on to state that she had adjourned to obtain probation report, detention centre report, training centre report and drug addiction treatment centre reports. She goes on:

"The defendant was found not to be a drug addict. He is not deemed fit for detention centre but fit for training centre. The probation officer having met with the defendant and studied his case and family background did not recommend probation. At the last hearing Mrs. Remedios tried to persuade me to have the defendant sequestered in the Kwun Tong Hostel with stringent conditions of living curfew and employment under a probation order. The probation officer concerned was consulted. She said as a probation officer for the Magistrate's Court she had no power to order the defendant to stay at this particular hostel. This would require a probation officer of High Court level. But she knew there was a vacancy. It was on this basis that there was another adjournment so as to obtain the probation report of a more senior officer. Mr. Cheng Cho Hong's report is now before me.

She then read from that report as follows:

' "The accused is the kind of youngster who is vulnerable to bad influence. He does not gain awareness from the arrests and continues to mingle with his triad friends, have low motivation to find a job, and even abused dangerous drugs a few months ago. It seems that he virtually has made very little effort in improving his loose life during the adjournment period. In view of the weak family support and his weak self-control to resist bad influence, the accused might easily relapse to his previous lax life in open society.

Probation service, with limited control on him in open society, probably is not a promising rehabilitation alternative. Might be a more structured residential training programme can be more beneficial for this youngster and let him be away from bad peers and establish a disciplined life style.'"

This officer also did not recommend probation.

I have given a lot of thought to this case, the common assault conviction, and this defendant. Now and again a Judge will take a chance on a defendant ..."

7. The judge then made mention of a case in which she did take a chance and in which the person to whom the chance was given responded to the trust placed in him and was doing well. She then went on:

"... however think both the probation officers are right. This defendant requires more discipline.

In getting this defendant away from his dubious friends, the triad and drug culture and to install some sort of discipline and training which may serve him best for the future I have decided to put him into training centre."

8. It is argued by Mrs. Remedios, who appears today for the applicant, that this order for detention in a training centre was in effect a custodial sentence and was manifestly excessive and wrong in principle given that he had been convicted only of common assault.

9. The trial judge made her order, having examined every possibility with meticulous care. It was an order which it was open in law for her to make and we find ourselves, having examined all of the facts, to be in complete agreement with her. This was a situation in which, despite the fact that the applicant was convicted only of simple assault, a training centre order was very appropriate indeed. The probation reports indicate that he is a person who requires disciplinary detention and training and that is what he will get under this order. We have no hesitation in refusing the application.