HKSAR v. WONG CHUN CHEONG

HCMA 779/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 779 OF 2000

(ON APPEAL FROM SPCC 3271 OF 2000)

____________

_______________

J U D G M E N T

_______________

1. This Appellant appeals against the Training Centre Order imposed on him in the Magistracy in respect of an offence of participating in a lion dance in a public place without a permit.

2. The grounds of appeal are that the Magistrate failed to take consideration of various matters when sentencing the Appellant. These were that the offence did not involve any threat of force, extortion or dishonesty; that he pleaded guilty to the offence; that he was 16 years of age when he committed the offence; and that the offence charged was pursuant to the Summary Offences Ordinance, where the maximum sentence is a fine of $2,000.00 and 6 months' imprisonment, a period shorter than the average detention period under the Training Centre Order.

3. The second ground of appeal was the general one that the sentence of Training Centre was wrong in principle and manifestly excessive.

4. The Magistrate spent a great deal of time considering this Appellant's situation when assessing the sentence. He appeared before the Magistrate unrepresented. The Magistrate, having heard his plea of guilty and his admission to the facts, sent for a Probation and Community Service Order report. The report indicated that the Appellant had already been on probation several times; in 1997 for an offence of Robbery; in 1998 for two charges of Unlawful Sexual Intercourse with a Girl under 16 and in 1999 for Common Assault. He had also breached probation in 1998.

5. The Appellant on the first of those Probation Orders, in 1997, had stayed for a period in O Pui Shan Boys' Home. The probation officer, rather unsurprisingly given Appellant's poor response to probation, was unprepared to take him on further probation unless the Appellant resided at a Probation Hostel. This the Appellant refused to do and accordingly, the Magistrate sent for further reports, for Training Centre and Detention Centre; he also sought a Young Offender Assessment Panel Report. Those reports exhaustively examined Appellant's family background; his educational background which was negligible; his working history which was almost non-existent and his long-standing association with the triad sub-culture. At the time of this offence, the Appellant was residing not with his family, but with his girlfriend's family. His girlfriend is pregnant and I was advised by counsel that she is due to deliver the child in December of this year.

6. The Young Offender Assessment Panel made a recommendation that Training Centre was the best course of treatment and rehabilitation for this Appellant. The Appellant objected to this because he said such an order was disproportionate to the seriousness of the offence and also because he said he is now prepared to live on probation and accept the condition of living in a hostel.

7. I am satisfied that the sentence in this case was a proper one. The Magistrate is obliged under section 4 of the Training Centre Ordinance, Cap. 239 to be satisfied that it is in the interest of the community and that having regard to the character and previous conduct of a Defendant and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime, he should undergo a period of training in a Training Centre.

8. Although a Medical Officer opined in one report that Detention Centre might have been a suitable option in this case, there was no family in Appellant's background that would help, or provide the necessary support for any Detention Centre Order imposed.

9. Mr Wong has referred me to two cases in support of his claim that this is a manifestly excessive sentence. However, I am satisfied that the cases of R. v. Tse Mui Crim App No. 229 of 1972 and R. v. Leung Kam Kwong (1988) HKC 371 are not relevant to this case because they were dealing with adult offenders. Wholly different considerations are applicable in sentencing young offenders such as the Appellant.

10. It is important that this offender's problems and needs be addressed as soon as possible. It is only if I am satisfied that the Magistrate has gone markedly wrong in imposing the sentence of Training Centre that I can interfere with the sentence. I am satisfied having looked at all the reports in this case and having considered this Appellant's prior history, that this is an entirely proper sentence and the appeal against sentence is dismissed.