R. v. HO CHI WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1402 of 1996

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J U D G M E N T

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1. The appellant was convicted of three offences - possession for sale of 26 CD with forged trade mark, 8 CD for trade in which copy rights existed and 192 obscene CD for publication.

2. The appellant was 19 years old with one minor dangerous drugs conviction in 1995 for which he was put on probation for 12 months and one minor theft. But this theft conviction was before the probation order was imposed. It was not committed in breach of the probation order.

3. The magistrate asked for Probation Order reports and Community Service Order reports which returned with no recommendation for probation and Community Service. The magistrate also asked for Detention Centre/Training Centre reports which indicated that the appellant was suitable and a period of disciplinary training would be beneficial to him. These reports did not state whether Detention Centre or Training Centre would be more appropriate and they left the option to the magistrate. The Probation Officer stated that the appellant came from a family of inadequate control.

4. The magistrate was of the view that a Training Centre Order was suitable having regard to a Detention Centre Order was for 1-6 months and a Training Centre Order was for a period of 6 months to 3 years, each with a period of supervision following discharge.

5. The magistrate stated in his finding that "it was apparent that the appellant was in need of a longer period of training and supervision if he was to overcome his poor start and learn to become a useful law abiding member of society."

6. The magistrate thought that "the appellant required re-education rather than punishment if he was to pull himself out of the track he had chosen to adopt."

7. The offences for which the appellant was convicted are not the most serious offences and they are the first offences of the kind committed by the appellant. As regards the 3rd charge, there is no evidence of the seriousness of the degree of obscenity.

8. The recent Court of Appeal's decision of AG v. Chow Kun Lap App. Review 6/96 held that it was necessary for the magistrate to assess the degree of obscenity before considering the sentence. In the present case, there is no such assessment. The normal sentence it is not disagreed for such offences is one of a fine or a short period of imprisonment. The magistrate himself did not consider these offences serious as he said that the appellant apparently saw the sentence imposed by him as a draconian punishment for three comparatively minor offences. But the magistrate considered his order one of rehabilitation and not punishment.

9. In R.v. Cheung Wing Wai CA289/92, the Court of Appeal saw a Training Centre Order in this way "The principle purpose of detention at a training centre is of course rehabilitation. But there can be no doubt that rehabilitation under such circumstances carries with it considerable punitive and deterrent element."

10. Duffy J. in R.v. Ng Kwai Shing MA 828/92 indicated that a Training Centre Order for the offence of possession of cannabis should not be imposed simply because the magistrate was unimpressed by the defendant's past performance.

11. Counsel for the appellant urged that Training Centre Order was too harsh and the more appropriate sentence would be a fine or a detention in a Detention Centre. He indicated that the parents of the appellant had prepared a plan for his rehabilitation and would exercise tight control over the appellant in future.

12. These offences are not of the most serious kind. There is no assessment of the obscenity of the 192 CD, although the quantity is substantial. It can only be presumed to be not of a serious degree. Having regard to the need for rehabilitation and that a Training Centre Order carries with it considerable punishment concurrent with rehabilitation, I agree that a Training Centre Order would have been appropriate if the offences were more serious, which is not the case here.

13. I agree with counsel for the appellant that if there was a need for rehabilitation of the appellant a Detention Centre Order would be more appropriate in which case, the short, sharp and shock treatment that entails such an order would enable the appellant to learn to become a respectful citizen as the magistrate expected a Training Centre Order would achieve.

14. In the circumstances, I allow the appeal against sentence and set aside the order of Training Centre Order substituting therefore a Detention Centre Order.