HKSAR v. ZHANG YU JIA

HCMA177/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 177 OF 2010

(ON APPEAL FROM KTCC 6649 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  The appellant pleaded guilty to one count of “possession of an offensive weapon” contrary to s. 33 of the Public Order Ordinance, Cap. 245. He was sentenced to Rehabilitation Centre. He appealed against the sentence.

2.  According to the admitted facts, shortly after 12 a.m. on 27 September 2009, a police officer saw the appellant acting furtively, in the vicinity of No. 384, Tai Nam Street, Sham Shui Po. The officer found a paper cutter[1]from his trousers pocket. Under caution, the appellant said the cutter was for scaring thieves away. He had no intention to commit any offence.

3.  In view of the mandatory sentence set out in s. 33(2)(c) of the Public Order Ordinance (“POO”), the magistrate called for Detention Centre and Rehabilitation Centre reports. The magistrate also mentioned the principle under s. 109A of the Criminal Procedure Ordinance (“CPO”).

4.  In passing sentence, the magistrate took into account that the appellant was of clear record and was a new immigrant to Hong Kong. The appellant had not used the cutter during the incident. The magistrate was satisfied that “it would be in the interests of the community and the appellant himself to undergo a period of detention in a Rehabilitation Centre.”[2]

5.  Counsel for the appellant raised three main grounds of appeal as follows :

(a)  The magistrate failed to give sufficient weight to the fact that the appellant committed the offence due to his ignorance of the law.

(b)  The magistrate erred in that s. 109A of CPO was applicable.

(c)  The magistrate erred in that Rehabilitation Centre was in the interest of the appellant.

6.  The magistrate had set out in the statement of findings that the appellant had a clear record, was of young age and was a new immigrant to Hong Kong. He also mentioned that the appellant had not used the cutter. He had considered the pre-sentencing report and the letter submitted by the appellant’s mother.[3] I am sure the magistrate had fully considered the background of the appellant and the circumstances of this case before sentencing. The fact that he did not specifically mention “ignorance of the law” as a mitigating factor would not cause me any concern.

7.  Counsel for the appellant is right in pointing out that s. 109A is not applicable as s. 33 is an excepted offence.[4] However, I do not agree with counsel that the magistrate was under the wrong impression to choose between Detention Centre and Rehabilitation Centre. In paragraph 3 of the statement of findings, it is clear that the magistrate was aware of the three sentencing options. The fact that he mentioned s. 109A showed that he was aware of the principle that a young offender should not be imprisoned unless there was no alternative option. In any event, before considering the options under s. 33(2)(c) POO, the magistrate must consider suitability reports from the Commissioner of the Correctional Services Department.[5] The fact that s. 109A is not applicable would not dispense with this requirement. The error pointed out by counsel could not have affected the sentence. There is no substance in this ground.

8.  Counsel for the appellant argued that there was no psychiatric assessment of the mental state of the appellant in the pre-sentencing report. Counsel argued that the assessment officer was subjective and the conclusion that the appellant had little sense of remorse was unjustified.

9.  I have read the pre-sentencing report carefully, there was no indication that the appellant was in need of psychiatric intervention. Counsel relied on the comment from the appellant’s mother in this aspect. This was raised during the mitigation before the magistrate.[6] Unfortunately, there was no further detail in the report either from the appellant or his mother. The assessment officer was well trained in assessing inmates and had observed the appellant during the remand period. There is no reason to doubt his assessment.

10.  The appellant only repeated to the assessment officer that the cutter was bought for self-defence. There was no attempt to explain why he thought that there was such a need. This could have been one of the reasons that the assessment officer found little sense of remorse in him. Counsel agreed that the appellant gave no explanation during the mitigation before the magistrate either.

11.  After taking further instruction, counselinformed me that the appellant witnessed his mother robbed when he was 12 years old. His mobile phone was snatched when he was 14 years old. Both incidents occurred in the Mainland. The appellant claimed that these incidents contributed to his urge to defend himself. In my view, this explanation is farfetched and adds little credence tohis claim of self-defence.

12.  Counsel also mentioned that the cutter was needed for the appellant’s part-time job as a kitchen assistant. This collateral use of the cutter was neither mentioned by the appellant in the report nor during the mitigation in the magistrate court.

13.  Counsel drew my attention to some decided cases. They were all about sentencing adults who had committed an offence under s. 33, POO. I find little assistance from these cases. The paramount goal in the appellant’s case is rehabilitation not retribution.

14.  The pre-sentencing report also revealed that the appellant remained idle after he returned to Hong Kong from New Zealand in mid-2009. He only started working as a part-time waiter in Tsim Sha Tsui area in late September 2009. His mother admitted to the assessment officer that she failed to supervise the appellant as she was busy at work.

15.  Having considered the above, I agree with the order made by the magistrate. I dimiss the appeal.