HKSAR v. WONG KOK SUM

HCMA518/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 518 OF 2002

(ON APPEAL FROM TWCC 349 OF 2002)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction on 9 May 2002 by Miss Adriana Ching sitting at Tsuen Wan Magistracy, of one count of theft of a magazine, and against the sentence of detention in a training centre imposed upon him in respect of this offence.

Appeal Against Conviction

2. Insofar as the appeal against conviction is concerned, it is alleged that there was no or insufficient evidence that the appellant stole the magazine; in particular, that there was insufficient evidence that the magazine was the property of the complainant and that the appellant had appropriated it. It is further alleged that the prosecution failed to adduce evidence of loss by the complainant.

3. There was no eyewitness to the alleged theft. The prosecution evidence came from the shop manager of the Circle K shop in Tsuen Wan Centre and a police officer who had subsequently interviewed the appellant. The shop manager had seen the appellant enter the shop and subsequently viewed the CCTV tape which was produced in evidence. It was the prosecution case that that showed the appellant taking a magazine from a rack in the shop, going round a corner inside the shop, tucking it into the top of his trousers and under his sweater.

4. The record of interview given by the appellant was essentially a denial of the prosecution case. He admitted having read a book which was in the magazine rack, but said that he had put it back on a magazine rack nearby. He denied putting a book under his clothing.

5. The prosecution did not adduce evidence as to the identity of the magazine involved, or any evidence to the effect that having checked its stock, a magazine was found missing. The appellant elected not to give evidence.

6. The final submissions of defence counsel, not surprisingly in the circumstances, were directed as to what could be seen on the CCTV tape. He submitted that the tape did not show the defendant hiding a magazine under his sweater.

7. There were four images on the tape depicting the scene captured by four different cameras operating simultaneously in the store. Defence counsel suggested that, at its highest, the top right corner of the tape showed the appellant picking up a book or magazine, followed by the appellant appearing in the bottom left quarter of the tape pulling or tugging at the fringe of his sweater. He suggested it was not a continuous recording of what the appellant did. He suggested that there was a blind spot when what the defendant did was not depicted. He said that, in any event, the magazine was quite bulky and would have fallen out from the sweater.

8. The magistrate in her reasons for verdict said that she had viewed the tape a number of times. She went on, "I saw the appellant taking a magazine from the rack. During the same 0.01 second the appellant appeared in the bottom left quarter of the scene holding a magazine. He could clearly be seen to be tucking the magazine into the top of his trousers and under his sweater." She disagreed with defence counsel's submission that it would have been impossible to carry the magazine out of the shop in that manner. She rejected the appellant's account in his record of interview. She said she found the charge proved beyond reasonable doubt.

9. The underlying basis of the magistrate's findings were what she said she had seen in the videotape. If those observations could not be justified, then that would undermine the whole basis of the appellant's conviction. I was invited to look at the tape.

10. I am satisfied having done so, that the magistrate's findings in that regard were entirely justified. I am satisfied that they depict the appellant taking a magazine from the rack, going round a corner and putting it under his sweater.

11. One of the grounds of appeal is that there was insufficient evidence to prove the magazine was the property of the complainant. The video film shows the appellant taking a magazine from the rack in a supermarket and putting it under his sweater. In the absence of any further evidence there was ample evidence for the magistrate to conclude that the magazine that was being taken was the property of the supermarket. Any doubt as to that would have been fanciful.

12. Insofar as it is argued that there was insufficient evidence of appropriation, I disagree. Any assumption by a person of the rights of an owner amounts to an appropriation. The only reasonable inference the magistrate could have come to from the fact that the appellant had placed the magazine under his sweater, in the absence of any explanation from the appellant, was that the appellant had assumed the rights of the owner and done so dishonestly with the intention of permanently depriving the owner of it.

13. The magistrate did not have to be satisfied that the appellant had removed the magazine from the store, or that the store had thereby lost the magazine. She did, however, disagree with the appellant's suggestion that it would have been impossible to remove the magazine from the store. If it had been impossible to do so then that might have been evidence relevant to whether the appellant intended permanently to deprive the supermarket of its property.

14. I find that there is no substance in the appeal against conviction and dismiss it.

Appeal Against Sentence

15. Insofar as sentence is concerned, Mr Mullick submits that the magistrate's order of detention in a training centre was manifestly excessive and wrong in principle.

16. The magistrate had extensive reports before her. On 4 April after convicting the appellant, she had asked for reports as to the appellant's suitability for probation, community service, detention centre and training centre. On 18 April 2002 she had asked for reports from a psychologist and the Young Offenders Assessment Panel. The appellant was found to be unsuitable for probation or community service. He was not suffering from any psychological problem and was suitable for Detention and Training centre. The Young Offenders Assessment Panel recommended training centre. The magistrate followed the recommendations of the Young Offenders Assessment Panel and sentenced the appellant to detention in a training centre.

17. Section 4 of the Training Centre Ordinance, Cap. 280, provides:

"Where a person is convicted of an offence punishable with imprisonment, then, if on the day of his conviction he is, in the opinion of the court not less than 14 but under 21 years of age and the court is satisfied that it is in the interests of the community, and that having regard to his character and previous conduct and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre."

18. The appellant had been aged 16 at the time of the offence but had turned 17 before he was sentenced. The offence of theft is punishable by imprisonment.

19. Mr Mullick's submissions are essentially two-fold. Firstly, that the makers of the reports before the magistrate and the magistrate herself, were improperly influenced by the appellant's then recent arrests for a number of alleged offences, including offences of assault occasioning actual bodily harm and possession of offensive weapon, in respect of some of which, including the possession of offensive weapon and assault occasioning actual harm charges, he was subsequently acquitted. He submits that if they had not been so influenced, the court would not have come to the conclusion that a training centre was appropriate.

20. Secondly, that the court did not properly take into account the circumstances of the offences and that if it had done so and applied the principles referred to by Ribeiro J, in Wong Chun-cheong v HKSAR [2001] 1 HKC 1, it should not have imposed a training centre order which was manifestly excessive and wrong in principle.

21. Insofar as the first matter is concerned, I have read the reports again in the light of Mr Mullick's criticisms. I do not consider that the makers of those reports were unduly influenced by those arrests, or that their recommendations would have been different if they had learnt of the appellant's acquittal of some of those matters. The fact of the matter was that the appellant had been put on probation for three offences of theft in 1999. He had breached the terms of his probation by committing four further offences of theft during his period of supervision. He was put on probation for a further period of 18 months. The makers of the reports were concerned with whether he had relapsed into delinquent behaviour and ceased his association with undesirable members of his peer group during that second period of probation. They were bound to refer to the significant number of matters for which he was subsequently arrested.

22. Although he was not convicted for, inter alia, the offences of possession of offensive weapon and assault occasioning actual bodily harm, he was convicted of three of those matters, all committed within his second period of probation, namely, the current offence of theft, an offence of making a false report to the police and behaving in a disorderly manner in a public place. Even though himself he was acquitted of the possession of offensive weapon charge, it is apparent from the judgment of Nguyen J that the appellant was associating with somebody when that person was committing that offence. The nature of the appellant's associates is a relevant matter if he is on probation.

23. There is some validity in Mr Mullick's suggestion that the magistrate appears, at least temporarily, to have forgotten that at that stage the appellant had not been convicted of these latter matters. Although in the course of submissions she stated that she was not looking upon the defendant as having been convicted of those charges (see page 59 of the transcript), in her reasons for sentence she appears to have assumed he had been. She said at paragraph 21 that, "As soon as he was released he immediately became involved in a spate of offences, some of those offences were committed while on bail for the present offence." In paragraph 24 of her judgment when she referred to the failure of the appellant to change his lifestyle, she stated, "To the contrary, the offences in which he became involved became increasingly serious." It would appear that she must have been referring to the charges of which he was acquitted, assault occasioning actual bodily harm and possession of offensive weapon.

24. I do not, however, believe that the magistrate would have taken a different view even if she had been aware of these acquittals. She was concerned with the appellant's "recidivism in theft cases". It was the appellant's conviction for this offence, his eighth offence of theft, while on his second period of probation and the absence of remorse, which led her to believe, rightly in my view, that a custodial sentence was the only appropriate course. The fact that he had committed other offences and continued to associate with undesirable elements would, I believe, have still led her to follow the recommendations of the Young Offenders Assessment Panel and make a training centre order.

25. In my view, in the light of all the matters in the reports, not restricted simply to the matters to which I have been referred, it was undeniably in the interests of the community and, having regard to his character and previous conduct, expedient for the appellant's reformation and for the prevention of crime that he should undergo a period of training in a training centre.

26. Mr Mullick argues that the sentence is manifestly excessive and wrong in principle because the magistrate failed to take into account the requirement in section 4 of the Training Centre Ordinance to pay regard to "the circumstances of the offence". He referred to the Court of Final Appeal case of Wong Chun-cheong v HKSAR [2001] 1 HKC 1, in which Ribeiro PJ, had said:

"The words used are 'the circumstances of the offence'. It follows that the court must consider the specific facts and hence the nature and gravity of the offence with a view to assessing the appropriateness of a training centre order. It cannot merely use the fact of a conviction, however trivial, as the opportunity or justification for a general review of the offender's character and previous conduct for the purpose of deciding whether he needs reformation by detention in a training centre. "

27. The offence with which the court was concerned in that case was quite different to that in the present case. The offence in that case was an offence of participating in a lion dance in a public place without a permit, contrary to section 4C(1) of the Summary Offences Ordinance, Cap. 228. It was a regulatory offence involving no moral turpitude and carrying a maximum sentence of a fine of $2,000 and imprisonment for 6 months. In this case the court was concerned with the offence of theft involving dishonesty and carrying a maximum term of 10 years' imprisonment. Although in that case the defendant had been put on probation in the past, it does not appear the offence in question involved breach of a probation order.

28. It cannot be denied that theft of a magazine is itself normally a minor offence, but Ribeiro PJ was not ruling out a training centre in all cases where the offence is minor. He said:

"Where the offence committed is minor and would not otherwise call for a custodial sentence, detention in a training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender's suitability as a candidate for training."

He had earlier said:

"A training centre order is intended, save in exceptional cases, only to be made where the offence committed is of sufficient gravity to merit contemplation of an immediate custodial sentence."

29. The magistrate in this case took the view that since the appellant had repeatedly committed the same offence, namely theft, and had not responded to non-custodial sentences, this was an offence that called for a custodial sentence. Even ignoring those occasions when the appellant had not been formally convicted of theft, he, a youth of just 17, had been convicted of seven previous offences of theft.

30. Having been put on probation for three offences of theft in 1999, he breached his probation by committing four more offences of theft the following year. He was given a further chance by being put on probation again. This offence is a breach of that probation order.

31. The courts cannot simply continue to impose non-custodial penalties for offences of theft in the face of overwhelming evidence that they have no effect whatsoever, even if the individual offence taken alone was minor. That would reduce the courts to impotence. It is apparent, when looking at her reasons for sentence, that she was accepting that this particular offence taken alone was trivial. Looked at in the context of the appellant's history of theft offences and failure to respond to non-custodial rehabilitative measures, it was not.

32. In my view, this case fell within that category of exceptional cases referred to by Ribeiro PJ when an offence, apparently trivial in itself, justifies the making of a training centre order. I dismiss the appeal.