HKSAR v. NGAN LAM YUEN

HCMA 684/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 684 OF 2000

(ON APPEAL FROM FLC 1379/1999)

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J U D G M E N T

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1. This Appellant was convicted in the Magistracy of Attempted Theft and was eventually sentenced to a Training Centre. The history of the sentencing is relevant for the purposes of this appeal.

2. The Appellant pleaded guilty in January 2000 to the charge of Attempted Theft, which was a comparatively minor offence. The Magistrate, having sought a report placed him on probation for a period of 12 months, warned him as to the consequences of breach, in particular, that he was likely to be re-sentenced on the original charge if there was any breach of the Probation Order.

3. A Progress Report was due on 28 April, but by the 24 February the Appellant was before the court having breached probation. The Probation Order was continued with an added condition that the Appellant reside at Kwun Tong Hostel. The Appellant agreed to this and the Probation Order was allowed to stand. On 28 April, the date fixed for the Progress Report, the Appellant failed to appear and a warrant was issued. Eventually, he came before the Court, on warrant, on 30 May. Appellant admitted that he breached the Probation Order by leaving the Hostel and by failing to report to the probation officer.

4. At that stage, the Magistrate called for a further Probation Report, Detention and Training Centre reports and a DATC report. Rather unsurprisingly, the probation officer did not recommend Appellant for further probation. As he was not a drug dependent, DATC was not a suitable order. Because of lack of parental support the Appellant was not suitable for the Detention Centre programme, but he was considered suitable for Training Centre. The Magistrate, accordingly, made a Training Centre Order.

5. The Appellant appeared before the Court today and said that he did not consider himself suitable for Training Centre because he had been living as a homosexual outside Training Centre and he hoped to be re-sentenced. He told the court that the probation officer had never explained the report properly to him and that he had left the Territory for Mainland China without realising he was not permitted to do so. He said that when he went to Mainland China, he lost his documents and was unable to come back for some time. I should point out that I do not accept that the probation officer would not have explained the Appellant's duties under the order. The Appellant admitted that the Magistrate had explained the report to him.

6. I read all the reports that were available to the Magistrate and it is quite obvious that the Appellant did not behave properly on probation. He had also lost any support from his parents, who were very disappointed by his repeated misbehaviour. It appears from the reports the Appellant is not interested in working and spends most of his time with his friends. He appears to have supported himself in the past by petty theft.

7. I am satisfied having read all the reports that the Magistrate was quite correct to re-sentence in the manner that he did. Accordingly, I dismiss this appeal against sentence.