HKSAR v. CURTIS RYAN ALEXANDER

HCMA 47/2024

[2024] HKCFI 1070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 47 OF 2024

(ON APPEAL FROM WKCC 5256/2023)

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REASONS FOR JUDGMENT

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Appeal against Sentence

1.  The appellant was charged with one count of failing to return to the rehabilitation centre before the expiration of the period permitted, contrary to section 5 (2) of the Rehabilitation Centres Ordinance, Cap 567. He pleaded guilty to the charge, was convicted and sentenced to a training centre order. He now appeals against this sentence.

2.  The appellant had been sentenced to a rehabilitation centre on 18 May 2023 after he was convicted of 4 offences namely arson, possession of a dangerous drug, resisting a police officer and lastly, failing to wear a mask in a specified public place.

3.  However, during the rehabilitation centre order period, the appellant failed to return to the centre as required after work on 25 November 2023. During this latter stage of the rehabilitation centre program, the appellant had a work placement to attend during the day but had to return to the centre at night. He was located the following day at home.

4.  The principal magistrate dealing with this count of failing to return to the rehabilitation centre called for another rehabilitation centre suitability report to see if the appellant could or should remain in the program at that centre. However, the report was poor and negative; a second chance was not recommended.

5.  The principal magistrate then called for a Probation Officers Report, a Training Centre Suitability Report as well as a Young Offender Assessment Panel Report. The appellant was then and still is 19 years old.

6.  The probation officer could not recommend probation. The Training Centre Suitability Report found him mentally and physically fit for detention in a training centre, therefore, suitable for detention in a training centre.

7.  The Young Offender Assessment Panel (“the panel”) found the appellant a young adult with weak law-abiding concepts and a lack of self-discipline. They concluded he was in dire need of a period of long-term character training in a disciplinary setting to help him modify his social values and behaviour. They were of the opinion that a training centre program was the most appropriate training measure for the appellant.

8.  The principal magistrate agreed with the panel and sentenced the appellant to a training centre order on 11 January 2024.

Grounds of Appeal

9.  Mr Brian Littlewoods represented the appellant during his appeal and in the courts below. He puts forwards one ground of appeal and that is the magistrate when imposing a sentence of a training centre order failed or gave inadequate consideration to the fact that the previously imposed rehabilitation centre order had almost been completed. Therefore, a fresh training centre order might lead to excessive time being spent in custody.

Discussions

10.  During the appeal hearing, even Mr Littlewoods admitted that the training centre order was hard to criticise when one read the contents of all the reports coupled with the recommendation of the panel. It is the usual practice to follow the recommendation of such a panel put together for the express purpose of considering the best interests of young people, their rehabilitation and reformation.

11.  His main submission was that the appellant has served almost 12 months in custody at various institutions. The rehabilitative purpose may have failed but he has been sufficiently punished already. To now impose a training centre order would be excessive and draconian.

12.  The respondent submits the appeal is without merit and the sentence passed is not too severe for the offence, the facts behind the offence and the appellant’s circumstances.

13.  It was submitted that I should consider or rather reconsider a probation order as an alternative to the training centre order. I was urged to give him one more opportunity. I was told that the appellant was now receptive to supervision under a probation officer.

14.  After much deliberation, I agreed to adjourn the appeal to obtain another probation officers report. Disappointingly, this report is not a favourable one. The probation officer cannot be criticised for trying to help the appellant.

15.  Despite a warning by the court to fully cooperate with the probation officer in order for the report to be a true reflection of the appellant’s circumstances and situation, he refused to cooperate. He refused to disclose his family and school information during an interview in the adjournment period. He was described as evasive in attitude and uncooperative.

16.  He refused to fill in the background information form of the “Social Welfare Department, Probation and Community Service Orders Office”. His reason for refusing was that he had previously filled in a similar form making it unnecessary to repeat the exercise. He challenged the probation officer when the purpose of the form was explained. He then deliberately wrote a false name, a false birthday, a false identity card number and refused to fill in information such as his address, family background and school details. I have had sight of this form. He also refused to sign other necessary forms.

17.  The appellant answered many questions with “I don’t know”. Even when asked what school he went to, his address and what were the names of his parents. When asked why he committed the offence and where did he go overnight, he replied that he could not recall. When asked if he would subject himself to the supervision of a probation officer he replied he should be able to.

18.  The probation officer was disappointed with his attitude and responses during the interview. With such a poor attitude, it is no surprise the probation officer did not consider giving the appellant another chance and could not recommend probation as a viable alternative.

19.  The only alternatives I could consider if this appeal was successful would be either a financial penalty or a term of imprisonment. However, I am of the view that the opinion of the young offender’s assessment panel carries weight and is the right one having read all of the reports obtained since the commission of this offence.

20.  The appellant is a young man and therefore his rehabilitation and his reformation are important considerations. There must be a balance, I agree, of proportionate punishment and reform. It is not always an easy balance to find.

21.  I do not find the imposition of a training centre order excessive under the circumstances. I do not find the alternative of a term of imprisonment appropriate. With his immaturity, aimlessness and present attitude, a training centre program is appropriate.

22.  This appeal has no merit. I find no flaw in the magistrate’s reasons for imposing such a sentence. Accordingly, I dismiss the appeal against sentence.