THE QUEEN v. CHAN TSE YEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 782 of 1985

__________

BETWEEN

_____________

________________________

REASONS FOR JUDGMENT

________________________

1. Having allowed the appellant s appeal against his sentence of detention in a Training Centre in respect of a conviction for 'Theft', I now give my reasons.

2. The appellant, a young boy of 17 years of age, pleaded guilty in the Magistrate's Court to a charge of 'Theft', contrary to Section 9 of the Theft Ordinance. The particulars of the offence were set out as follows:-

"That on the 5th of July 1985 outside the Changing Room of Cho Yiu Swimming Pool, Cho Yiu Estate, Kwai Chung in Hong Kong, you did steal one wallet containing cash $1,800 and one Hong Kong Identity Card and one Liu Chong Hing Bank ATM Card and one lady's Rolex wrist watch, the property of TSANG Yee-wah."

The admitted facts were in the following terms:-

3. The appellant had a clear record and the learned Magistrate quite rightly called for Detention Centre, Training Centre and Probation Officer's Reports.

4. All the reports were very favourable so far as the appellant was concerned. The Probation officer's Report indicated that in the opinion of the Probation officer it was not necessary to place the appellant on probation and that probation could be dispensed With at this stage. The Commissioner of Correctional Services' Report indicated that the appellant was mentally and physically fit for detention in both a Detention Centre or a Training Centre. However he formed the view after a general assessment of the appellants behaviour and attitude while on remand, that he was more suitable for detention in a Detention Centre.

5. It appears from his detailed reasons for sentence that the learned Magistrate exercised considerable care in reaching his decision. He rightly took a serious view of the appellant's actions and his subsequent behaviour. I respectfully differ from his view that the appellant should have been sent to a Detention Centre. In my view, the Detention Centre should really only be considered as an alternative, if probation is not appropriate. Clearly at this stage of the life of this young boy, reformation was the main aim both in the appellant's interests and also in that of the public. The appellant was not a "hard nut" of the sort for which probation would have been unsuitable. Indeed, the background report of the appellant was extremely favourable.

6. I was of the opinion that given the very favourable report he had received concerning his family background and school record, his participation in extra curricula activities and his membership of the Junior Police Call, Road Safety Patrol and Sports Club, his description by his teachers as a student who was willing to accept responsibilities, his successful award of the bronze cross of the Royal Lifesafing Society, and his apparent deep sense of regret, bearing in mind his very young age and the attitude of his parents to this particular offence, taking all these matters into consideration I considered that the Magistrate should have placed the appellant on probation under the supervision of a Probation Officer. The facts were sufficiently serious in my view to record a conviction.

7. In addition to the reasons I have mentioned there are others of which the Magistrate could not have known, namely that the result of his examinations has now come through and he passed his School Certificate in six subjects and also that he is a blood donor.

8. The appellant had already been in a Detention Centre since the 19th of July and had received a nasty jolt.

9. I did not consider that in the circumstances it was now necessary to place the appellant on probation and I therefore conditionally discharged him under Section 36 of the Magistrate's Ordinance on his entering into a recognizance in the sum of $500 to be of good behaviour and to appear for sentence when called on at any time during a period of 1 year and that a conviction should be recorded.