HKSAR v. NG SIU WING

CACC 190/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 190 OF 1999

(ON APPEAL FROM DCCC 103 OF 1999)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

The applicant, Ng Siu-wing, on 1 April 1999 in the District Court was convicted on his own plea of guilty to two counts of attempted burglary by His Honour Judge Hawkes who ordered him to be detained in a training centre. He now seeks leave from this Court to appeal against that order.

All he says in his home-made grounds in his notice of application is that as his sentence is too heavy, he appeals and applies for legal aid. We say at once that there are no reasons whatever for ordering legal aid to be provided to him.

Before us he has added only this: that the colleagues who were also charged with him received shorter periods of imprisonment, and he also says that the relevant recommendation in relation to a training centre stated that he was not medically suitable.

1. The facts are quite simple. Two officers were patrolling inside Tip Sum House in Butterfly Estate, Tuen Mun on the 17th floor. There they noticed the applicant acting suspiciously near the rear staircase of that floor. He was outside Flat 1710 and outside the door of Flat 1709 were two other persons trying to get the door of that flat open with a hanger. When the two noticed the police, one of them alerted the others who all then fled. The police officers gave chase and managed to catch the applicant who was arrested. When he was cautioned, he freely admitted that the three of them had tried to get first into Flat 1709 and then were attempting to get into Flat 1710 when interrupted.

2. The judge was provided with a Probation Officer's Report, a Drug Addiction Treatment Centre Suitability Report and, in the context of the Commissioner of Correctional Services' written opinion that the applicant was not suitable for detention in a training centre, a background report from a Pre-Sentence Assessment Panel Officer. All three reports were of considerable length and very comprehensive. They revealed a record that is not merely lamentable but one might even say appalling. He was only about 18 years and 4 months of age at the time of the two offences in these proceedings. But as early as 22 November 1994 he had been convicted of theft and subjected to a probation order of 18 months and 9 months in the Begonia Road Boys Home. Two years later, on 25 November 1996, he was convicted of possession of dangerous drugs and sent to a detention centre. Again, less than two years later, on 6 March 1998, he was convicted of theft and fined $1,000. On 18 March 1998 he was convicted of possession of dangerous drugs and had another probation order of 18 months made against him. On 24 April 1998 he was found to have breached his probation order and was sent to a drug treatment centre. The present offences, we repeat, took place on 23 November 1998. The reports also revealed that his parents are divorced and that his mother has not been able to control or guide him notwithstanding the regard she has for him. It is also clear that he has not benefited from the periods of probation, his short sharp period of detention in a detention centre, nor apparently from his periods in a drug addiction treatment centre. Nor have the fines had any effect on him. But he is still young, not yet 19. Clearly, the judge had a difficult decision to make. Significantly perhaps he has never been sent to a training centre. If he were sent to prison, that could theoretically be a deterrent, but his period of custody would be very much less than the potentially 3-year period in a training centre, a consideration that appears to have prompted his application. Likewise, he would not have benefited from the sustained reformative training in the latter, with a release date linked to his progress.

3. Having regard to those considerations, clearly the judge cannot be said to have been wrong in principle or otherwise, in the order he ultimately made in sending the applicant to a training centre. We think he is more likely to benefit from a potentially longer period directed specifically at his reformation and dependent upon the progress he makes, then from a simple period, potentially much shorter in prison where he could be exposed to all the other well-known influences which might tend further to corrupt him.

4. In those circumstances it seems to us that the judge came to the right decision.

5. In reaching our conclusion, we have not overlooked the view of the Commissioner of Correctional Services that the applicant was not suitable for detention in a training centre; nor do we think that the judge overlooked it. The only reason given by the Commissioner was that:

"as the Medical Officer has confirmed that the [applicant] is a drug dependant, I do not consider him suitable for detention in a Training Centre".

We think the considerations we have mentioned wholly outweigh that reason. Moreover, the applicant has now been in a training centre for 31/2 months apparently without any of the problems that might have been feared.

6. We accordingly refuse leave to appeal.