HKSAR v. MA CHUN LEUNG

HCMA1208/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1208 OF 2003

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J U D G M E N T

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Background

1. On 7 August 2002 the appellant, who was born on 5 June 1982 and who was then aged 20, pleaded guilty at Western Magistracy to a charge of theft committed on 21 July. He was remanded on bail until 21 August 2002 pending receipt of a probation report and a community service report.

2. On 12 August 2002 the appellant pleaded guilty at Shatin Magistracy to another charge of theft committed on 11 August. He was bailed to return to that court on 2 September.

3. He failed to answer his bail both on 21 August and on 2 September.

4. On 16 November 2002 the appellant appeared at Eastern Magistracy and he pleaded guilty to another offence of theft committed on 15 November (on which day he was arrested) and unsurprisingly he was then remanded in custody until 6 December for (as the magistrate puts it) "the full range of reports".

5. On 6 December for each of the three offences of theft the appellant was placed on probation for a period of 18 months, one special condition imposed being that he reside in a hostel for six of those months. Progress reports were called for on 14 March, 9 April and 18 June 2003.

6. Those reports received by the magistrate in March and April were (to put it mildly) unsatisfactory. In June the appellant failed to attend court as required but the progress report for that hearing made it abundantly clear that he had failed to observe numerous of the probation and the probation hostel requirements by returning late on 23 occasions; by being absent from work on five days; and by failing to return to the hostel on eight separate days. That report also made it clear that he was frequently absent from work without approval and that when he was discharged from the hostel he effectively disappeared.

7. On 1 July 2003 the appellant was arrested for yet another offence of theft (committed that same day) and he pleaded guilty to it on 2 July. He was remanded in custody until 16 July pending the receipt of further reports including a Detention Centre suitability report which (when it was received) confirmed that the appellant was indeed suitable for such a disposal.

8. However on 6 August 2003 the magistrate proceeded, despite protestations from the Correctional Services Department, not only to set aside the probation order but to impose in its place an order that the appellant be sent to a Training Centre. He did not make such an order in respect of the 1 July 2003 theft because of the appellant's age at the time of the commission of that offence and for that offence he imposed a fine.

9. What happened thereafter is clearly and helpfully set out in the magistrate's 'Reasons for Sentence' as follows :

" The appellant applied to have me generally review these sentences. The review was held on 22/8/03. The Department of Justice joined in the review proceedings, it being their view I had erred and the appellant was not eligible for Training Centre, as the C.S.D. had earlier contended. Having heard the parties I accepted I was in error. In focusing on the requirements of the Training Centres Ordinance I had overlooked the provisions of the Probation of Offenders Ordinance which, put shortly, said the applicable date for calculating the age was the date the appellant was dealt with for the breach of probation and not the earlier dates of conviction. I allowed the review application and set aside the Training Centre sentences and also the fine I had imposed as to ESCC2091/03. It was the appellant's wish to be given yet another chance on probation or, failing that, a term of imprisonment rather than Detention Centre which I had explained to him was the great likelihood. I listened to the appellant's submissions but was clearly of the view that neither of the courses he proposed was suitable. I remanded him until 5/9/03 for a Detention Centre report, the earlier one being now well out of date.

On 5/9/03 I sentenced the appellant to Detention Centre on each of the four matters.

On 10/10/03 the appellant came before me, unrepresented, on an application for me to review the Detention Centre sentences. He repeated his promises to do better if put back on probation and referred to the physical hardship he was finding the stay in Detention Centre to be. I refused to alter the sentences and confirmed them.

The appellant now appeals those sentences.

......

The many reports prepared and considered in this long process will be part of the appeal bundle. I will accordingly not repeat that detail here ... .

In conclusion I note my view the appellant had been a clear and repeated failure on the probation program. Also he had re-offended while on probation. Having considered all matters I was sure the appellant required a custodial sentence. The options were Detention Centre or imprisonment. In keeping with the clearest authority that imprisonment is a last resort for young offenders, I sentenced the appellant to Detention Centre."

The appeal

10. Despite those matters referred to in the last paragraph of the magistrate's 'Reasons' which I have set out above the appellant suggests that the sentence ultimately passed upon him in the form of a Detention Centre order was too severe. He seeks to draw comparisons between his situation and that of other 'inmates'. He also suggests that blame for his frequent remands cannot be laid at his door.

11. The fact of the matter is that between June 2002 and August 2003 he had, on four separate occasions, stolen the contents (including wallets) from rucksacks put aside in public playgrounds by their owners whilst they were engaged in recreation.

12. Quite apart from any consideration of the mean nature of the offences the appellant has clearly chosen not to accept the very real chances offered to him in these proceedings (prolonged not only by his total indifference but also by the magistrate's quite apparent concern to do justice), and he cannot, in my judgment, now complain about the order which was ultimately made on 5 September 2003, and which was made both in his interests and in the interests of the community at large.

13. For all of these reasons this appeal is dismissed.