HKSAR v. CHI WING KIN

HCMA683/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 683 OF 2000

(ON APPEAL FROM TWCC 678 OF 2000)

-------------

-------------------------------

J U D G M E N T

-------------------------------

1. The appellant was charged with three offences of burglary. All the three incidents took place on 6 February 2000 in the police barrack of the New Territories South Operational Base. The items involved were sports shoes and police boots. The appellant pleaded guilty to the charges, but he applied to reverse the pleas afterwards. The application was duly refused by the learned magistrate. The sentence imposed was a concurrent term of six months for all the three offences. The appellant sought to appeal against the conviction and sentence.

2. I have read the Statement of Findings prepared by the learned magistrate. It contained a very clear statement as to the background of the case and why she had refused the application to reverse the plea. She pointed out that :

"In the present case, the plea of guilty and the admission of the brief facts by the appellant in court were unequivocal. He had been legally represented, and there was no suggestion that he had not been fully and properly advised by counsel. I was satisfied that the appellant in pleading guilty had not been subject to any duress, he had not been misled by anyone, and there was no misunderstanding on his part. Under those circumstances, I refused leave for him to reverse his plea."

3. In reaching her decision, the magistrate had carefully considered the submissions made and was guided by authorities, namely, Stephen Herbert 1992, 94 Cr. App. R.; R v. Turner (1970) 54 Cr. App. R.352 and Peace Case (1976) Crim. L.R. 119. Although the Hong Kong decisions in this area were not mentioned, such as HKSAR v. Au Yeung Boon Fai [1999] 3 HKC 605 and Wong Chi Yuk, HCMA 381/1999, the correct principles had been applied in the present case.

4. The appellant reiterated before me that he was pressurized by his father and the lawyer to plead guilty. Such matters had already been canvassed before the learned magistrate. The appellant was an adult. His father and lawyer were entitled to give him opinion and advice, even in strong terms. Ultimately it was the appellant's own decision to plead guilty to the charges. I found that the learned magistrate was right in rejecting the application for reversal of pleas.

5. I found no basis to disturb the magistrate's decision. The appeal against conviction must be dismissed.

6. However, in relation to the sentence of six months' imprisonment, the appellant now sought leave from this court to lodge an appeal out of time.

7. The appellant is now 22. He has a clear record. He used to be a university student but he encountered difficulties in coping with the pressure. Unfortunately, he did not obtain the degree in the end. It appeared that he had been suffering from some form of depression. The learned magistrate had asked for a background report, a community service report and a psychological report before sentence.

8. The reports prepared by the probation service were rather positive. The appellant was not recommended for the community service order because open rehabilitation with counseling was considered to be more appropriate in his case. The psychological report also recommended psychotherapy. The learned magistrate had adopted 18 months as the starting point but reduced it to six months for all the offences.

9. A term of imprisonment would be the usual punishment for such offences. However, I believe this case can be treated on an exceptional basis. The appellant's conduct did not seem to be motivated by greed. Perhaps this case called for an emphasis on rehabilitation and treatment, rather than simple punishment.

10. With the consent of the appellant, I had obtained a probation report, which recommended a probation order for 18 months with special conditions. Having been explained of the contents of the report and the recommendation, the appellant agreed to be placed on probation. He accepted the conditions and was made aware of the consequence of the breach of the order.

11. In the circumstances, I took the view that, in principle, the appellant could be given a chance to try probation. Therefore, I would give leave to the appellant to appeal out of time and allow the appeal on sentence. The six months' imprisonment would be set aside and a probation order of 18 months, with general and special conditions, would be imposed.