THE QUEEN v. AU WAI KEUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 374 of 1984

______

BETWEEN

_____

__________

JUDGMENT

__________

1. This is an appeal against conviction and sentence on a charge against all appellants of common assault. The Crown relied at the hearing of the matter on the evidence of two young boys who were inmates of the Begonia Road Boys' Home. The first was Chan Ming-tat, who was the alleged victim, and the Magistrate has found that he was an unreliable witness. He was not declared hostile, but from his demeanour in Court the Magistrate decided that he was frightened in giving his evidence and she has therefore virtually dismissed that evidence except and in so far as he does say that the three appellants together with other boys were present on the 27th January when quite clearly he was assaulted, and quite badly assaulted. The Crown relies virtually entirely on the evidence of another inmate, Chan Kam-sui, who said that he was in the room with the victim and he saw several persons assault him, including these three appellants. His evidence was certainly not as clear as it could have been in that he can't remember how these three appellants did assault. It may well be, in fact, they didn't themselves actually assault the victim at all.  What the Magistrate has found and on the evidence is not by any means an unreasonable finding is that they were part of this group who, for whatever reason, had decided to assault the victim. The Magistrate has gone through this evidence in her very careful and detailed statement of findings. She finds on the evidence of the 2nd prosecution witness that all 6 defendants had come across 2 other inmates who clearly were the main culprits, beating the victim and they, acting as a group, joined in that assault.  I find myself unable to see why she should not have come to that conclusion. The evidence was, as I say, perhaps not as satisfactory or as good as it might have been but it was there for the Magistrate to accept or reject. She has accepted it and I am satisfied she was entitled to do so. The appeal against the conviction is dismissed.

2. In the question of sentence the Magistrate having called for Probation Reports from the Social Welfare Department, decided that the only course that she could take was to send the lst appellant to a detention centre. Mr. Walter Lau, in his very careful and well presented arguments both on conviction and sentence in which every possible point in favour of the appellant has been taken, says that this assault was not such as to call for a custodial sentence which detention centre is, and nobody should be punished for his previous offences. I think however when one is dealing with a young man in deciding which is the proper course to take previous convictions must be very important in considering what is the appropriate course to take. The lst appellant was placed on probation for robbery in August 1982. Probation was continued when he later on committed the offence of handling stolen goods in February 1983 and probation was continued yet again when, during that period, he was again convicted, this time of assault in November 1983. This is then his second conviction for assault and his fourth criminal conviction. There seems to me to have been no real alternative but to either send him to detention centre or training centre. Probation was not recommended for obvious reasons. Detention in the Castle Peak Home was not recommended. A fine would be of no value except to penalise his family and I don't think his family deserves to be penalised. It seems to me his family has been only too anxious to support him. To put the appellant on a bond would be far too lenient. It seems to me therefore that a detention centre with a recommendation to the Commissioner of Correctional Services that in this case perhaps a shorter period than normal might be appropriate; that is however entirely a matter for his discretion.

3. The appeal against sentence is also dismissed.

4. Turning to the other two appellants on sentence Mr. Lau concedes that really there are little he can say. They had been sentenced to go to the Castle Peak Reformatory and clearly that was the proper course. The appeals of each of the appellants against sentence are also dismissed.