HKSAR v. CHOW WAI HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY CRIMINAL APPEAL NO. 18 OF 1998

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J U D G M E N T

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1. The Appellant was convicted in the magistracy in November 1997 on two charges, Possession of Dutiable Goods being 1,150 litres of light diesel oil, contrary to Section 17(6) of the Dutiable Commodities Ordinance, Cap. 109, and the second Selling Dutiable Goods contrary to Section 17(8) of the same ordinance. The Magistrate imposed a Training Centre Order in respect of those charges. The Appellant now appeals against sentence.

2. It appears that the Magistrate had taken into account all the relevant factors in deciding this sentence. He called for two reports, a Probation report and a Training Centre and Detention Centre report. Once he received those reports, he faced serious difficulty in sentencing because effectively he was precluded by the gravamen and recommendations in those reports from dealing with Appellant by way of a fine or indeed by a Community Services Order as he might otherwise have done.

3. The Appellant who is aged 16 years (DOB 25.4.81) had a previous record as a juvenile. In 1994 he was placed on probation for 12 months. During the course of that probation, he was arrested for other offences and as a result was sent to Detention Centre. He was released from the Detention Centre but had to be recalled later because he was in breach of supervision requirements.

4. The reports that the Magistrate had before him indicated with great detail why the Appellant was thought not to be suitable for either Probation or Detention Centre.

5. The Appellant's history shows that he was brought up with lax parental supervision. He failed to complete his studies. He got into trouble from about 1994. He lived in Probation Hostels during the period of his Probation Order. He did not have a proper working history. What was more significant and must have caused the Probation Officer some concern was the fact that he had admitted heroin abuse in the course of the investigation and that it was quite clear that he was connected in some way with triads or other undesirables and said that he was still keeping up those connections.

6. The Magistrate would have been irresponsible, in my view, given the circumstances that were revealed by these reports, to have dealt with this Appellant in any way other than he did. The Training Centre Order has a major rehabilitative element. It is quite plain that this Appellant is on the slippery path to continued criminal activity and unless something is done about it at this stage he can look forward to a long and successful career in jail.

7. The Appellant was precluded from going back to the Detention Centre, which ordinarily might have been an option in this case, because he had already had one term there and that an unsuccessful term as regards the supervision. It is hardly surprising that he was not recommended for that course.

8. The Training Centre Order, as I said, has a major rehabilitative factor. Although it has a maximum term of 3 years, I understand that the optimum term served, depending on the behaviour of the person concerned, is believed to be around 14 months. It can be less, obviously it can be more. The Magistrate dealt with this Appellant with the Appellant's best interests in view. The sentence is neither excessive nor inappropriate. Accordingly I dismiss this appeal against sentence.