THE QUEEN v. TSANG SAI MAN

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1709 OF 1990

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BETWEEN

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JUDGMENT

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1. The Appellant was convicted after trial on 8 charges of robbery. At the time of conviction he had a criminal record having been previously convicted of the offence of assaulting a police officer for which he was fined $200.00.

2. On this occasion the learned magistrate called for a Probation officer's report, a Detention Centre suitability report and a Training Centre suitability report.

3. The Appellant was born on the 3rd June 1974. The reports obtained by the magistrate were to the effect that he was unsuitable for open probation supervision; unsuitable for sentence in a Detention Centre, but suitable for sentence to detention in a Training Centre. The learned magistrate accordingly sentenced him to detention in a Training Centre.

4. He now appeals against that sentence. His principal complaint is that he has been dealt with harshly in relation to two other offenders who were charged with him in respect of the offences on which he was convicted. The two other offenders because they were younger, were not dealt with by the same magistrate who dealt with the appellant, but were sentences in and Justice Court.

5. Now apart from being younger, tire other two also pleaded guilty. As Probation Orders were made in respect of them it would appear that the Probation Officer's report was favorable and recommended probation supervision in their cases

6. On behalf of the Appellant today. Miss Sze Kin has made a number of submissions in which she has compared the background material available in the reports of all three offenders and in effect demonstrates that, save in respect of two maters, the appellant's background is at least as favourable, if not in some instances more favourable, than that of the other two offenders. However, there are two matters in respect of which there is a difference as between this, appellant and the other two offenders. There are really three, the third being age but since the difference is not great I will not consider it. The two significant differences, I think, are that each of the other two pleaded guilty and each had a clear record. This Appellant therefore can have no basis for complaint whatsoever if those two appear to have been dealt with more leniently than he has been dealt with because the plea of guilty factor alone is sufficient to warrant a significant difference in treatment between two offenders convicted of committing the same offence.

7. In this particular case, it seems to me, on the basis of the reports which the magistrate had before him, that he had no alternative than to order a sentence of detention in a Training Centre having in mind, as he was bound to have in mind, that the rehabilitation of this young offender. was a paramount consideration.

8. Notwithstanding the submissions made to me, I can see no basis whatsoever on which I could interfere with the decision made by the learned magistrate to order that this appellant serve a period of detention in a Training Centre. I therefore find no substance in his appeal against sentence and it must be dismissed.