HKSAR v. CHENG KA WING

CACC 452/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 452 OF 2000

(ON APPEAL FROM DCCC 670/2000)

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J U D G M E N T

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Hon Lugar-Mawson J:

1. The Applicant, Cheng Ka-wing, aged 17, has applied for leave to appeal against his sentence of Detention Centre training imposed on him on 23 October 2000 by Judge Mary Yuen in the District Court for an offence of burglary. He had pleaded guilty to this offence. He had no previous criminal convictions.

2. Briefly, the facts were that on an unknown day in March 2000, in the early evening he, with others, broke into residential premises in Pak She Second Lane, Cheung Chau Island. They ransacked the premises and stole HK$3,000, which the householder kept under his bed. The householder made no report of this burglary to the police until they interviewed him on 20 September 2000.

3. The circumstance under which this offence came to be discovered and the Applicant prosecuted for it are somewhat strange.

4. Originally the Applicant was one of 8 defendants; all teenagers like him, who faced 11 burglary charges in various combinations of offender. One of the others also faced a count of handling stolen goods. The Applicant faced one charge of burglary of the same premises in Cheung Chau, the 10th count on the District Court Charge Sheet, jointly with four other defendants. This offence had been reported to the police.

5. On 15 September 2000, all 8 defendants pleaded guilty before Judge Yuen to the charges they faced. She remanded the Applicant and the 7 other defendants in custody until 9 October 2000 and ordered pre-sentence Probation, Detention Centre, Training Centre, and Young Offender Assessment Panel Reports in respect of all of them. The Applicant had been in custody since late August 2000.

6. After the proceedings on 15 September had ended, the Applicant's family, who had been in court, were concerned that, despite the fact that he was represented and had pleaded guilty, it was to an offence that he had not committed. The Applicant had told them that he had committed a burglary of the premises in Cheung Chau, but the facts of that offence, as recounted to them by the Applicant, were different to those he had agreed to when the summary of facts was read to him in court. In particular, the amount of money stolen, those involved in the offence and the method of entry were all different. His family engaged the services of a new solicitor to represent him.

7. On 9 October 2000 the solicitor raised the family's concern with the Judge and an adjournment of the date for sentence was granted until 23 October 2000 for the Department of Justice to investigate the matter. The Applicant's solicitor also raised his concern that, should the Applicant's information result in a different charge being preferred against him, the pre-sentence reports ordered on 15 September would not deal with the correct facts. The Judge ordered a further Probation Report to be prepared in respect of the Applicant.

8. On October 23, 2000 the prosecution confirmed that the investigation supported the Applicant's version of events. The Judge granted the Applicant's application to reverse his plea to the 10th count. The Prosecution applied to re-amend the charge sheet by adding a new count 13. The Applicant pleaded guilty to this new charge and admitted the summary of facts dated 21 October 2000, which related to that charge alone. The Judge convicted him on the new count and the prosecution offered no evidence against him in respect of the 10th count, on which he was then acquitted.

9. Mr James McGowan, who appears for the Applicant, argues that the Judge erred in deciding that Detention Centre training was the most appropriate sentence for him. He says that once the basis of the Applicant's criminality had changed and she had ordered a further probation report in respect of him, she erred in not following the recommendation in that report.

10. He also says that she erred in not seeking a review, or update, of the other reports on which she intended to rely in sentencing him.

11. Finally, he says that the disparity of sentence between that passed on the Applicant, who faced only one charge, and certain of his co-defendants who pleaded guilty to a number of charges, is such that he has an understandable and real sense of grievance.

12. We take the 3 points relating to the adequacy of the pre-sentence reports first.

13. The Probation Officer's report prepared for the sentencing hearing on 9 October concluded that the Applicant was an unsuitable subject for a Probation Order. Neither was he considered suitable to undertake unpaid work under a Community Service Order. This was because he was considered to be of '...a deep-rooted deviant behavior' and to be drug user (he had admitted being a regular smoker of cannabis) and to have Triad connections. The Correctional Services Department's suitability report considered him suitable for training in either a Detention Centre or a Training Centre. He was mentally and physically fit for detention in either institution.

14. The Young Offender Assessment Panel concluded and I quote:

'Ka-wing is considered to be a wayward and playful youngster who has been strongly influenced by his undesirable peers and has identified with their delinquent value and subculture. His family was concerned about him, but was unable to render effective supervision to him. The present offence showed that Ka-wing had poor law-abiding concept and he still had not gained adequate insight into his problems. His determination to start afresh was still weak. In view of the above and the seriousness of the offence, the Panel believes that a strong impact with clear message as well as structured training programme to develop his socially acceptable behaviour and respect for law and order is necessary for his rehabilitation. Hence, the Detention Centre programme with emphasis on discipline and "Shock, Sharp, Short" regime is considered to be a suitable training measure for this case.'

15. The additional Probation Officer's report ordered and prepared after the hearing on 9 October concluded that:

'Taking into account of his...wayward behavior with strong pursuit of identification with triad elements and weak parental control, probation supervision is considered only marginally effective to bring him back into the right track in the course of rehabilitation. Should Your Honour tend to grant this fresh offender a valuable chance, a 18-month probation order is recommended with the special conditions that he shall:...' The suggested conditions follow.

16. With respect, we do not agree with Mr McGowan's submission that the author of the report changed her recommendation to one of an 18-month probation order with special conditions. She was in effect saying that the Probation Service would take the Applicant under their wing if the Judge decided that probation was the most suitable method of dealing with him. She made it plain to the Judge that she considered that probation supervision would only be of marginal effect. The factual situation in this case is different from that in Gillam [1980] 2 Cr App R (S) 267, relied on by Mr. McGowan, where the second Social Inquiry Report was '...considerably more to the advantage of (the) appellant' and concluded that the appellant was '...a fit and suitable person' to do community service.

17. We have read all the reports on the Applicant that were before the Judge. All paint a picture of him as a youth who lacked parental care and supervision in growing up; who does not communicate with his parents; who has chosen to associate with undesirable friends and acquire an allegiance to a Triad Society; who has become addicted to smoking cannabis and who committed the act of burglary he admitted committing in order to gain easy money to fund his cannabis addiction and squander at video game centres. We are aware that he has no previous convictions and until arrest was continuously in employment, though we note that he appears to have been unable to hold-down any job for very long.

18. We do not see what difference it made that the offence of burglary which the Applicant admitted was a different one from the one he was originally charged with. The victimised premises were both domestic premises, in fact they were the same premises, and the criminality was the same.

19. We are of the view that there was no need for the Judge to order an additional Correctional Services' Suitability Report and an additional Young Offender Assessment Panel Report on 9 October 2000. We are of the view that the reports she had before her on 23 October gave her sufficient guidance on her sentencing options.

20. Mr McGowan's submissions on the first 3 grounds of appeal fail.

21. We turn now to the 4th ground, alleging disparity in sentencing.

22. The Applicant's co-defendants, their ages, the number of counts each faced and their sentences are as follows:

23. The 1st Defendant WONG Oi-kwok was aged 15, he faced 8 counts of burglary and was sentenced to detention in a Training Centre.

24. The 2nd Defendant was KWOK Chi-wa was aged 15, he faced 7 counts of burglary and was sentenced to detention in a Training Centre.

25. The 3rd Defendant FAN Chi-kwong was aged 17, he faced 4 counts of burglary and one count of handling stolen goods and was sentenced to detention in a Training Centre.

26. The 4th Defendant CHAN Wai-ho was aged 13, he faced 3 counts of burglary and was sentenced to 2 year's probation with a requirement that he reside in boy's home for 9 months.

27. The 5th Defendant LO Ka-kin was aged 14, he faced 3 counts of burglary and was sentenced to be detained in a reformatory school.

28. The 6th Defendant LAW Wing-pong was aged 14, he faced 4 counts of burglary and was sentenced to 18 month's probation.

29. The 7th Defendant was the Applicant.

30. The 8th Defendant KAM Yiu-san was aged 14, he faced 3 counts of burglary and was sentenced to detention in a reformatory school.

31. Only the third defendant Fan Chi-kwong was the same age as the defendant. Of the others, two were 15, three 14 and one 13.

32. We accept that there may be an objectionable disparity of sentences where one of two, or more, defendants receives, from the same judge and at the same time, a more severe sentence than the other, or others and the difference is not justified by any relevant distinction in their culpability or personal circumstances. There is ample authority for that proposition. Quirke [1982] 4 Cr App R(S) 187, Sykes [1980] 2 Cr App R (S) 187 and Church [1985] 7 Cr App R (S) 370 are all examples of its application.

33. However the Judge was not dealing with adult offenders, the defendants before her were young offenders and it was incumbent upon her to ensure, so far as she could, that each received a sentence that was appropriate for his needs and would best give him a chance to reform. She was aware of this when she said in her sentencing remarks:

'Having analysed the actual gravity of the matter, I also have to bear in mind that all the defendants before me are youngsters or teenagers ranging from the age of 13 to 17. For their age group, rehabilitation is one of the top concerns of the court. To assist them to rehabilitate themselves I am prepared to adopt an individualised and rehabilitative approach instead of the retributive one.'

34. She did not loose sight of this approach when, in sentencing the Applicant, she said:

'I heard a lengthy mitigation on your behalf from your lawyer. I have also considered all the papers before me by the various friends, colleagues, or your class teacher, or your school principal. After having considered all the background plus the submission, I still think the Detention Centre is a more appropriate option for you. Though it may, as far as you are concerned, involve hard work for the short period to come, which means you might have a lot of exercise, a lot of discipline for the short period of some few months, but after a short duration, you will be reunited with your family and I certainly hope you make use of this chance.'

35. We consider that she balanced adequately the need to pass a sentence on the Applicant that would best give him a chance to reform, as well as punishing him for his offence, against the need to avoid a marked disparity between the sentence he received when set aside the sentences his co-defendants received.

36. Indeed it may be said that the Applicant's punishment is far less severe than that of Fan Chi-kwong, the other 17 year old, who was sentenced to detention in a Training Centre. Unless the Chief Executive intervenes to reduce the period, which is unlikely, Fan Chi-kwong will have to stay there for a minimum period of 6 months, with the possibility of being kept there for 3 years. Whereas the Applicant, being under 21, faces only the possibility of a maximum 6 months detention in a Detention Centre. In saying that, we acknowledge that Fan Chi-kwong admitted committing 4 burglary offences and one handling offence, not just the one burglary offence, which the appellant admitted.

37. Mr McGowan's submissions on the 4th ground of appeal fail, accordingly the application is dismissed.

38. We make it clear that the judge's order for payment of $1,000.00, compensation still stands.