THE QUEEN v. LEE CHI MING

MAGISTRACY APPEAL NO. 251 OF 1985

ADDENDUM :

On page 1 after "clothing." add : "He pleaded guilty to a charge of Criminal Damage, contrary to the Crimes Ordinance."

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 251 OF 1985

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J U D G M E N T

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1. The Appellant is a 17-year-old youth. At about 5.00 a.m. on 25th February 1985 he was caught by the police in the company of three other boys aged, 13, 14 and 15, throwing coloured light bulbs into a fountain in Chater Garden. The Lunar New Year festive period had just ended and the bulbs had formed part of the festoonery in the Garden during the festive season. 39 bulbs had been removed but only 11 were broken. Those 11 bulbs formed the subject of the charge. There is no indication of their value in the facts put before the learned magistrate but the bulbs were obviously very small - the Appellant could fit 22 of them into one pocket of his clothing.

2. The other three boys also pleaded guilty. Each of the was placed on probation for 18 months with no conviction recorded. All, including the Appellant, were ordered to pay costs. The Appellant was sentenced to detention in a training centre. He now appeals against that sentence.

3. He had a clear record before the commission of this offence. On the face of it, his sentence appears to be wrong in principle.

4. The learned magistrate's reasons for sentence were expressed as follows:-

                "This was a form of vandalism of public property committed by young persons, obviously for their enjoyment.

I took a serious view of the case and called for probation reports on all the defendants.

Because the Appellant was the oldest of the four boys and also the one found with 22 light bulbs in his pocket I formed the view that he was the ringleader and accordingly I felt that detention and training centre reports may be of assistance in his case.

After noting the contents and recommendation in the probation report I then considered the detention and training centre reports.".

5. The probation report was not favourable in that the probation officer thought that "open probation supervision may not be effective to deter (the Appellant) from transgressing the law again." The probation officer did not consider whether the Appellant would have responded to "closed probation supervision" in the Kwun Tong Hostel and unwittingly led the learned magistrate to believe that his only alternatives were sentences of detention centre or training centre detention. An examination of the reasons for sentence therefore confirms that the sentence is wrong in principle in that the learned magistrate did not properly decide what was the best course to take in order to turn this young man into a good citizen of the future. I allow the appeal.

6. After deciding to allow the appeal I adjourned for further consideration the question of substitute sentence. My reading of his background reports leads me to believe that the Appellant will behave more responsibly once he is gainfully employed. He obtained such employment during the 14-day period of the adjournment. He also submitted, at my request, an essay which sets out the reasons why he now thinks that his conduct is to be deplored and why the community can be assured that he will be a law-abiding citizen in the future. It indicates that he has given serious thought to the question of his future behaviour. He has also suggested in the essay that he should pay a further $300.00 out of the money he has earned during the adjournment as compensation for the damage he caused. In view of this, I consider that the appropriate order to make now is that he be discharged conditionally on (1) his entering into his own recognisance in the sum of $250 to be of good behaviour and to come up for conviction and sentence if called upon at any time within 12 months from 2nd May 1985 and (2) his paying into court for payment out to the Treasury the sum of $300 as compensation.