WONG CHUN CHEONG v. HKSAR

FACC No. 9 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2000 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 779 OF 2000)

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J U D G M E N T

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Chief Justice Li:

1. At the conclusion of the hearing on 21 December 2000, we allowed this appeal, setting aside the magistrate's order that the appellant be detained in a training centre and, in the light of the fact that he had already spent 4 months in such detention, substituted a fine of $100. We indicated that we would give our reasons later and this we now do by the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. On 17 February 2000, the third day of the lunar new year, the appellant, then just under 17 years of age, was taking part in a lion dance in Kwun Chung Street Market. He was beating the drum and his three companions were manipulating the lion. They were soliciting lucky money or new year "red packets" from the stall holders.

3. The appellant was arrested by the police and convicted before the magistrate of participating in a lion dance in a public place without a permit, contrary to section 4C(1) of the Summary Offences Ordinance, Cap 228. The maximum sentence for this offence is a fine of $2,000 and imprisonment for 6 months.

4. There was no evidence that the conduct of the appellant or his associates (who he admitted were triad members) involved any intimidation or extortion or, indeed, anything unlawful apart from their not having a permit. It was plainly an offence which would not normally call for a custodial sentence. Indeed, the Director of Public Prosecutions, Mr Grenville Cross SC, appearing with Mr Peter Chapman and Ms Lily S L Wong for the respondent, informed us that in recent years convictions for this offence have all resulted in fines except for one in which the defendant was bound over. Nonetheless, having had regard to the appellant's background (to which this judgment will return), the magistrate, R B McNair Esq, decided upon a sentence of detention in a training centre.

5. This meant that the appellant was to be detained in a training centre for a minimum of 6 months and up to a maximum of 3 years (as determined by the Commissioner of Correctional Services). In practice, we were told by Mr Cross, inmates on average spend 18 months in detention. The sentence also meant that after his release, the appellant would be subject to a regime of supervision and conditions regulating his conduct for a further period of up to three years, the sanction for any misbehaviour during that time being recall to the training centre.

The issue

6. This is accordingly a case where the minimum period of detention ordered equals the maximum period of imprisonment prescribed for the offence and where the appellant is at risk of being detained in the training centre for up to five times that statutory maximum. This appeal therefore raises in sharp relief the issue of whether and to what extent it is justifiable to sentence a young offender to detention in a training centre because he has committed a relatively trivial offence not otherwise calling for a custodial sentence.

7. The magistrate, having considered the relevant reports, imposed the sentence because he believed that it was for the appellant's own good and in order to save him from a "downward spiral into a subculture and lifestyle which [would] have him returning to the court on more serious matters." On appeal, Beeson J took the same view, commenting that it was important "that this offender's problems and needs be addressed as soon as possible."

8. There is no doubt that both the magistrate and the judge acted out of the noblest of motives. However, can such a sentence be justified on the basis that it is for a young offender's "own good"?

9. Before the twentieth century, the answer would have been a clear "No". Conservative thought focussed on retribution, deterrence and the protection of society, laying little emphasis on reform of the offender as the object of penal policy. Liberal nineteenth century philosophers would have rejected the notion of detention for an offender's own good as an unwarranted application of the state's power. Thus, in a well-known passage in his essay On Liberty, John Stuart Mill wrote as follows :-

" ... the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." (Harvard Classics, 1909 Ed, Vol 25, p 212)

The traditional approach was simply one of imposing a sentence proportionate to the offence. Professor H L A Hart, cites a description of such approach as follows :-

"Sentencing used to be a comparatively simple matter. The primary objective was to fix a sentence proportionate to the offender's culpability, and the system has been loosely described as the 'tariff system'. ... In addition, the courts have always had in mind the need to protect society from the persistent offender, to deter potential offenders and to deter or reform the individual offender. But in general it was thought that the 'tariff system' took the three other objectives in its stride: giving an offender the punishment he deserved was thought to be the best way of deterring him and others and of protecting society." (Punishment and Responsibility OUP 1968, pp167-168, quoting from the Streatfield Report, Cmd 1289 (1961), paras 257-8)

10. The idea of imposing individualized sentences reflecting the offender's record, personal circumstances and background with a view to his rehabilitation is therefore of comparatively recent origin. Professor Hart (op cit, p 165) traces the changes to the Gladstone Report of 1895, following which a range of sentencing options were introduced, including probation, Borstal training, corrective training, preventive detention, as well as powers of absolute and conditional discharge, whereby :-

"For the first time [judges] were charged with the duty of considering the suitability of a sentence whose aim was sharply differentiated from retribution for past wickedness ... and [they] were made to participate in an activity which in the main had been a matter for administrators."

11. Judges have frequently found it less than easy to decide how the competing, and often conflicting, demands of proportionate punishment on the one hand and reform on the other, can be reconciled in particular cases. Professor Hart illustrates the point by reference to sentences of Borstal training, the institution upon which Hong Kong's training centres are based :-

"... our judges have always felt uneasy when faced with a conflict between what they consider to be a punishment appropriate to the seriousness of a crime, and the steps which one of the individualized forms of punishment might require. Sometimes this emerges into the light of day in reported cases. Thus it is now the law that a young offender may be sent to borstal training which may last as long as three years, although his last offence is punishable by a maximum penalty of one year. But, for many years, courts of first instance have refused to do this and the Court of Criminal Appeal upheld them in this until last year [in R v Amos (1960) 45 Cr App Rep 42] when, by a sudden reversal of principle, hard indeed to reconcile with a doctrine of binding precedent, the offender's last offence was allowed to figure as a symptom of the need for reformative treatment rather than as determining by itself the measure of punishment." (Ibid, p 167)

The question at the heart of this appeal is whether it is acceptable as a matter of law to treat the offender's last offence "as a symptom of the need for reformative treatment" and therefore as the basis for imposing a training centre sentence, regardless of its triviality.

12. One may note incidentally that it is no longer the law in England that a period of detention for training may exceed the maximum for the relevant offence: see Crime and Disorder Act 1998, section 73(6).

The judges' ambivalence

13. Given the nature of the problem, it is not surprising that the cases show a marked ambivalence on the part of the judges (both in the UK in relation to Borstal and in Hong Kong in relation to training centres) regarding the correct approach.

14. Two lines of authority have developed. In the first, the courts have refused to make Borstal or training centre orders on the ground that the resulting period of detention would be wholly disproportionate to the gravity of the offence for which the defendant was convicted.

15. Thus, in R v Longstreeth (noted in R v James [1960] 1 WLR 812), the offence was breach of a probation order made in respect of a conviction for vagrancy, carrying a maximum sentence of 3 months' imprisonment. Lord Goddard CJ stated :-

" ... if he goes to Borstal he will probably be detained 15 months, and that is what causes the court to wonder whether Borstal training ought to be imposed on these youths when the maximum sentence of imprisonment they can receive is only one of three months. I dare say it would be very much better that they should go somewhere to be trained, but on the whole we do not think it is a satisfactory sentence because it does deprive the appellant of his liberty. If he is sentenced to imprisonment he cannot be deprived of his liberty for more than three months, and if he behaves himself that is reduced to two months. That is the position and the court thinks that on the whole they ought to set aside the sentence of Borstal."

That approach was adopted in R v James [1960] 1 WLR 812, even though Lord Parker CJ remarked that the 17 year-old appellant was "an unruly sort of person" who was in need of training.

16. R v Amos (1961) 45 Cr App R 42 is the case cited by Professor Hart, as mentioned above, and illustrates the second line of cases. In that decision, Lord Parker CJ appears to some extent to have changed his mind, holding that the two cases mentioned above were wrong in so far as they imply "that where the maximum sentence fixed by statute is less than the period for which a prisoner would undergo Borstal training then Borstal training is wholly inapplicable". In R v Amos, the appellant, aged 19, had previous convictions for larceny of small sums for which he had been fined and put on probation. He was before the court for two offences of obtaining small amounts of credit by fraud, these offences having been committed during the period of probation and carrying a maximum sentence of one year's imprisonment. Despite the relatively minor nature of his offences and the one year maximum, his sentence to Borstal training was upheld.

17. In Hong Kong, a case falling within the first line of authorities is R v Lo Tak-ming & Anr (Unrep) Cr App No 164 of 1972, where the defendants were convicted respectively of keeping and aiding and abetting the keeping of an unlicensed massage establishment, offences punishable at a maximum, by a fine of $1000 or 6 months' imprisonment. One of the defendants had 21 previous convictions, 19 of which were for touting. The training centre order had been made to promote what the magistrate had considered to be the defendants' own bests interests, but, as Leonard J noted, such offences would usually have attracted a small fine. He set aside the training centre order as inappropriate "for what were, when all is said and done, petty offences."

18. R v Ng Kwai Shing MA No 828 of 1992 (possession of 16 gm of cannabis) and R v Chiu Yat Hung MA No 208 of 1996 (possession of infringing copies of CDs worth $3,000 for the purpose of trade) are cases in the same vein. In the latter example, the offence carried a maximum sentence of a $100,000 fine and 2 years' imprisonment on first conviction. The appellant was aged 17 and had previous convictions for burglary, breach of probation order and a similar sale of infringing copies. He had been sent to detention centre for breach of probation and fined for his last conviction. Leong J took this background into account but decided to set aside the training centre order, substituting a fine of $3,000. He did so stating that the sentence "should be commensurate with the offence and an offender is not to be sentenced for his past convictions."

19. Numerous cases can be found to illustrate the second, competing line.R v Scott [1969] Crim LR 156 is a vivid example. There, the English Court of Appeal dismissed the appeal against a Borstal training sentence imposed for stealing a pint of milk (with three similar offences taken into account). The appellant had three previous convictions for larceny and one for taking and driving away. Previous sentences had included attendance and detention centre orders, a fine and probation. Professor D A Thomas, commenting on the case in the Criminal Law Review states that it is clear :-

" ... that the triviality of the immediate offence does not make a sentence of borstal training improper, where the sentence is clearly in the appellant's own best interest."

20. R v Happe and Goodwin (Unreported, English Court of Appeal, 19 March 1973), a case involving criminal damage to a street light worth ￡19, and R v Gibbs (Unreported, English Court of Appeal, 9 November 1977, No 4626/A/76), which involved criminal damage to the car belonging to a social worker who had hit the appellant, are further examples of cases where Borstal training sentences were upheld notwithstanding the minor character of the offence.

21. In his influential work on sentencing, Professor Thomas espoused the second line of authority in unequivocal terms :-

"It has long been established that the principle requiring proportionality between offence and sentence has no application to the sentence of borstal training where that sentence is imposed as a training measure in the offender's best interests." (Principles of Sentencing, 2nd Ed, p 263)

In the light of the ambivalence noted above, it falls to be considered whether Professor Thomas's proposition represents the law in Hong Kong and, in particular, whether and to what extent a sentence of detention in a training centre may be justified on the ground that such sentence is for the offender's own good, notwithstanding the minor character of the offence and the fact that it would not otherwise justify a custodial sentence.

Section 4(1) of the Training Centres Ordinance

22. The answer must lie in the construction of the Training Centres Ordinance, Cap 280. Section 4(1) lays down the requirements for imposing a sentence of detention as follows :-

"Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, and the court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre."

This provision has four parts. First, it lays down two threshold conditions to be met before any thought can be given to making a training centre order: (i) that the relevant offence must be one punishable with imprisonment, and (ii) that the offender is aged between 14 and 21.

23. Secondly, it requires the court to be satisfied as to two broad questions: (i) that such detention "is in the interest of the community", and (ii) that such detention would be expedient for the offender's reformation and for the prevention of crime.

24. Thirdly, it enjoins the court to answer the second of the two broad questions just mentioned by having regard to three matters: (i) the offender's character; (ii) his previous conduct, and (iii) the circumstances of the offence.

25. Fourthly, it makes it plain that a training centre order can be made "in lieu of any other sentence".

The threshold conditions

26. The first threshold condition is easy to meet. The sentences prescribed for the vast majority of offences involve the possibility of imprisonment. The second threshold condition is however more revealing of the statutory intention. The training centre option is plainly intended only for young offenders and when section 4(1) defines the eligible age range as between 14 and 21, it is clearly designed to dove-tail with the provisions which restrict the imprisonment of young persons.

27. The first of these is section 11 of the Juvenile Offender Ordinance, Cap 226 which provides as follows :-

"No young person [ie, persons 14 years of age and upwards and under the age of 16 years] shall be sentenced to imprisonment if he can be suitably dealt with in any other way."

Section 109A(1) of the Criminal Procedure Ordinance, Cap 221 covers those aged 16 to 21 as follows :-

"[Save in respect of excepted offences] No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate ..."

It is therefore clear that detention in a training centre is intended to be one of the alternatives to imprisonment which a sentencer must consider before deciding that a young offender should be sent to prison. While it does not follow from this conclusion that training centre orders are intended only for cases in which imprisonment is contemplated, it does tend to indicate that the paradigm case involves detention in a training centre being treated as an alternative to imprisonment. This in turn suggests that such detention should not generally be regarded as appropriate where the offence is trivial.

"In the interest of the community"

28. Mr Cross laid considerable emphasis on the requirement that the court must satisfy itself on the broad question that detention in a training centre "is in the interest of the community". He argued that since it would obviously be in the interest of the community that the appellant should receive training with a view to deflecting him from a life of crime, the court was correctly satisfied on this question and accordingly, that the training centre order was rightly made notwithstanding the trivial and otherwise non-custodial nature of the offence.

29. With respect, the construction of the section which underlies that submission cannot be accepted. If such an approach were correct, it would justify a training centre order in every case involving an eligible offender and render otiose the other conditions prescribed by section 4(1).

30. As the decided cases show, the "interest of the community" condition means that a sentencing tribunal has to consider whether, looking at the circumstances overall, a training centre order is in the community's interest and, if not, to reject that option, despite the offender's need for rehabilitative treatment, save in exceptional cases.

31. Thus, the training centre option may be rejected as not "in the interest of the community" where the need for deterrent sentences has to be given priority over the rehabilitative needs of the individual offender.

32. This approach is well-established in drug-trafficking cases. Thus, inAG v Suen Yuen Ming [1989] 2 HKLR 403, Silke VP stated :-

"We accept that in the context of an offender such as Suen Yuen-ming there can be an apparent conflict between his interests, his rehabilitation, deterrence to him and to others and the interests of the community. ... Clearly it is incumbent upon the courts to be wary and to exercise great care before they commit young offenders to prison and this is a factor which the legislature has recognised. ... While there may exist the conflict to which we have referred a moment ago between the varying aspects relating to the offence and the offender there equally well may be cases where the interests of the community can be best served, though we accept that these will be rare in drug cases, by placing greater emphasis on rehabilitation as distinct from deterrence."

Authorities to a similar effect include R v Yu Chun Hoi [1991] 1 HKLR 479; R v Chiang Sun Keung [1997] HKLRD 24 and AG v Kong Kin Man [1997] 1 HKC 537. In the last of these cases, Litton VP stated :-

"The authorities on sentencing clearly establish that age - whether youth or old age - carry little weight when drug trafficking is concerned. It is only in rare cases that detention in a training centre is appropriate on a conviction for drug trafficking: see in particular A-G v Suen Yuen Ming [1989] 2 HKLR 403. There is a considerable public interest involved in showing by deterrent sentences that the courts will treat drug trafficking most severely."

The reference in section 4(1) to "the interest of the community" therefore does not provide any support for use of training centre orders in cases where the offence is trivial.

The second and third parts of section 4(1)

33. Assuming that no overriding community interest precludes the making of a training centre order, section 4(1) requires the court to be satisfied that it would be expedient to detain the offender in a training centre for his reformation and for the prevention of crime. This time, the Ordinance does give guidance as to how this question should be approached: the court must have regard to the offender's character and previous conduct and to the circumstances of the offence before deciding to make the detention order aimed at his rehabilitation and (it would follow) the prevention of crime.

34. It is significant that the court must look at both the characteristics of the offender and the circumstances of the offence. The raison-d'être of the training centre is the rehabilitation of young offenders, so the court must obviously look at the character and previous conduct of the possible detainee to assess his suitability for training. However, what this part of section 4(1) makes clear is that the court cannot make the order without having also considered the circumstances of the offence.

35. The words used are "the circumstances of the offence". It follows that the court must consider the specific facts and hence the nature and gravity of the offence with a view to assessing the appropriateness of a training centre order. It cannot merely use the fact of a conviction, however trivial, as the opportunity or justification for a general review of the offender's character and previous conduct for the purpose of deciding whether he needs reformation by detention in a training centre.

36. Having considered the circumstances of the offence, the court may conclude that the offence is too serious or too trivial to regard the object of rehabilitation by training as expedient in the particular case.

37. Where the offence is regarded as too serious, the effect of this construction overlaps with the foregoing construction of the "interest of the community" condition. In relation to offences that may be considered too trivial, this construction leans heavily against the use of training centre orders. It supports the view that training centre orders are only appropriate in cases meriting immediate custodial treatment save in exceptional cases.

"In lieu of any other sentence"

38. Mr Cross submitted that the final part of section 4(1), which provides that training centre orders may be made "in lieu of any other sentence", establishes that such orders must not be treated solely as an alternative to imprisonment.

39. With respect, that submission must be correct. However such words are quite consistent with the view that on the true construction of section 4(1), a training centre order is intended, save in exceptional cases, only to be made where the offence committed is of sufficient gravity to merit contemplation of an immediate custodial sentence.

40. It is neither possible nor desirable to attempt to lay down criteria for the exceptional case where a trivial offence may justify a training centre order. It is perhaps sufficient to note that extreme examples can be found where the court has been moved to make such an order where the young offender would otherwise be left in a thoroughly desperate position, for instance, suffering from some mental deficiency or posing a threat to his own life or safety where, for one reason or another, no other option for dealing with him exists.

Conclusion as to the principles

41. On the basis of the foregoing discussion, the proper approach of a court to the making of training centre orders may be summarised as follows :-

(1) The court should first be satisfied that the threshold requirements are met, ie, that the offence is punishable with imprisonment, and that the offender is aged between 14 and 21.

(2) The court should then consider whether in the case at hand, the interest of the community requires that the rehabilitative approach should give way to a punitive or deterrent sentence. If so, the training centre option should not, save in exceptional cases, be adopted.

(3) If it is in the interest of the community to adopt a rehabilitative approach, then the court must have regard to the offender's character and previous conduct, as well as the circumstances of the offence in deciding whether it is expedient that he should undergo a period of training in a training centre for his reformation and for the prevention of crime.

(4) Where the circumstances of the offence are such that a training centre order would be too lenient, the court is entitled to reject that option notwithstanding that the offender would otherwise be regarded as a suitable candidate for training.

(5) Similarly, where the offence committed is minor and would not otherwise call for a custodial sentence, detention in a training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender's suitability as a candidate for training.

The principles applied in the present case

42. The appellant came from a broken home and was estranged from his father. His mother died in the year preceding the offence in question. He had dropped out of school after unsuccessfully repeating his first form class. He was living with the parents of his girlfriend, a girl aged 16 who was pregnant with his child. He had four previous convictions and was in each case placed on probation, in one case, subject to a condition of residence in a boys' home. The offences were (i) robbery of a girl, committed with three others; (ii) breach of the probation order made in respect of that offence; (iii) two offences of unlawful sexual intercourse with a 15 year old girl; and (iv) common assault. He was associating with triad members and had confessed to having experimented with the drug "ecstasy" on one occasion. He was unemployed.

43. Leaving aside the circumstances of the offence, there can be no doubt that on the basis of the various reports prepared on the appellant, the magistrate and the judge were fully entitled to regard him as a suitable candidate for a training centre. Nevertheless, as stated at the start of this judgment, the offence was plainly trivial and would normally have been dealt with by a fine or other non-custodial measure. Indeed, the probation officer's original inclination had been to recommend a further probation order on condition that the appellant would agree to residential training in a probation hostel. This was not pursued because the appellant would not agree to such a condition stating that he wished to be with his girlfriend when their baby was born.

44. The present case is not in the exceptional category which would justify detention in a training centre for what would be a wholly disproportionate period given the triviality of the offence. In these circumstances, the appeal must be allowed and the magistrate's order for detention in a training centre be set aside. As the learned Chief Justice has indicated, a fine of $100 was substituted.

45. We were informed that the appellant has now found a job and intends shortly to get married to his girlfriend who is expected to give birth early in the new year. It is to be hoped that this marks a new and more productive chapter in his life.

Representation: