ATTORNEY GENERAL v. SO CHI-SHING

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REASONS FOR JUDGMENT

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Power, V.-P.(giving the judgment of the Court):

1. The respondent faced three charges of robbery in the District Court.

2. The respondent had been arrested on 25th December 1994 by two patrolling police officers. His arrest came about because he alerted the officers by running off when he became aware of their presence. They gave chase and apprehended him. Under caution he admitted committing the offences, two of which had never been reported to the police. However, he pleaded not guilty to those charges when he came before a magistrate. The matter was remitted to the District Court for trial. He was given bail pending trial.

3. While on bail he committed two offences of theft. On 17th February 1995, having pleaded guilty to the two theft offences in the Magistrate's Court, he was ordered to be detained in a Drug Addiction Treatment Centre. When the charges of robbery first came before the District Court in March 1995, he then being in the Drug Addiction Treatment Centre, he maintained his plea of not guilty and the matter was set down for a hearing of 3 days commencing on 11th October 1995. It seems that in about mid August while he was still in the Treatment Centre he indicated that he was prepared to plead guilty to the three outstanding robbery charges.

4. They were then brought on early before Beeson D.J. on 24th August 1995 when he pleaded guilty to those charges. The judge adjourned the matter to 11th September 1995 calling for a Probation Report and a Drug Addiction Treatment Centre Report. A "Progress Report", to which we will refer later, indicates that he was released from the Drug Addiction Treatment Centre on 30th August 1995 and that his release had nothing to do with the pending robbery charge but was because of his "satisfactory institutional behaviour..." When sentencing on 11th September 1995, the judge, having had the benefit of those reports, said:

5. The admitted facts were as follows:

6. The respondent's record shows that he has been convicted of attempted burglary in September 1990 and placed upon probation; of unlawful assembly on 24th January 1991 when the probation order was extended for six months; of supplying dangerous drugs to an unauthorized person on 3rd August 1993 and sent to a Drug Addiction Treatment Centre; and finally of the two theft charges on 17th February 1995 and sent for a second time to the Drug Addiction Treatment Centre.

7. The Probation Report obtained by the judge states that his father was a drug addict who left the support and control of the family largely to the mother. The mother, however, because of the father's drug addiction, left home and the elder sister took up the parental role supervising the respondent and his younger brother. In 1991, the mother returned home to take care of the children. It seems that because of poor parental supervision the respondent fell in with triad society members. Nonetheless his mother continued to be very supportive of her son and visited him monthly when he was detained in the Hei Ling Chau Drug Treatment Centre.

8. The Drug Addiction Treatment Centre Report obtained by the judge states:

"On 17/2/95 so was sentenced to the treatment centre again and recently, on 30/8/95, he was discharged from the centre. His performance in the centre was reported to be satisfactory and he also showed positive response towards the treatment programme. With regard to the present conviction, it was indeed an offence So committed before he went to the treatment centre early this year."

The report went on:

"As So is found no longer to be a drug dependent by the Medical Officer, a period of abstinence treatment at the drug addiction treatment centre is therefore unsuitable for him."

A "Progress Report" from the Commissioner of Correctional Services which was also before the judge states:

The position being dealt with by the judge, as revealed by the reports, indicated that he had a positive family support from his mother; that he had made real progress by ridding himself of his drug addiction and that he had, by his attitude in the Centre and by his plea of guilty, shown a real degree of remorse and a preparedness to face the consequences of his actions.

9. The Attorney General now asks this court to review the order that he be detained in a training centre on the ground that it failed to reflect the gravity of the criminality of three robbery offences and that the judge failed, without there being any exceptional circumstance which would have justified her in so doing, to heed the repeated indications from this court starting with Mo Kwong-sang that offences of armed robbery merit a prison custodial sentence.

10. The application by the Attorney General is not surprising as the judge gave no indication, other than her reference to after care, why she considered it proper to order that this respondent, who was aged 20 and who had pleaded guilty to three robberies, should be sent to a Training Centre. What we must ask ourselves is whether there was, to use the words of The Attorney General v. Yau Wing-hong (1995) 3 H.K.C. 95, any "exceptional circumstance" which would warrant the making of that order. We would have been greatly assisted when seeking to answer that question by an indication from the judge as to what she considered warranted a departure from the guidelines.

11. This matter does have a number of unusual features. The three robbery offences which resulted in the Training Centre order were committed, but not dealt with, before the respondent was sent to the Drug Addiction Treatment Centre for the two theft charges. As we have set out above he had clearly made considerable progress in the centre. At the time he came before the judge for sentence there were positive indications not only of real remorse but also that he was well set upon the path of rehabilitation. This was not, we emphasize, the situation that obtained in Attorney General v. Yau Wing Hong (1995) 3 HKC 95 where it was urged, on behalf of the respondent, in an Application to Review a Training Centre order that it should not be replaced by a prison sentence because rehabilitation had commenced after he had been sent to the training centre. We come to our conclusion in the present case having regard to the circumstances which existed at the time when the judge passed sentence.

12. We are satisfied that those circumstances can properly be considered exceptional and that it was in the respondent's interest and in the interest of society at large that he be sent to a training centre. The application is, therefore, refused.