ATTORNEY GENERAL v. TO KA SHING

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REASONS FOR DECISION

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Sir Alan Huggins, V.-P.:

1. The Respondent was sentenced by His Honour Judge Chism to detention in a training centre for wounding with intent, and the Attorney General applied for a review of that sentence on the ground that it was wrong in principle. On 25th September 1986 we allowed the. application and said we would give our reasons later.

2. The error alleged arose from the fact that at the time of sentience the Respondent was already serving a sentence of eighteen months' imprisonment for robbery, a fact which the judge did not mention in his Reasons for Sentence: his only (oblique) reference to the robbery was contained in the statement that the Respondent had a clear record "at the time of this offence", i. e. at the time of the wounding. Although the wounding took place on 4th October 1984, no charge was laid in respect of it until November 1985.   In the mean time the Respondent had committed the robbery and been convicted and sentenced for it.

3. Whilst no difficulty arises when a sentence of imprisonment runs concurrently with another sentence of imprisonment as to the whole or part, it is a physical impossibility to detain a prisoner in two or more institutions at the same times. Consequently the Training Centres Ordinance made provision that, where a person who was serving a sentence of detention under that Ordinance was sentenced to immediate imprisonment, the sentence of detention in the training centre should be suspended for the period of imprisonment if the term of imprisonment was one of two years or less and should cease to have effect if the term was of more than two years: s 5A. No provision was made for a case where an original sentence of imprisonment had superimposed upon it a sentence of detention in a training centre, and it is argued on behalf of the Attorney General that the Legislature assumed that such a situation would never arise, because a person serving a term of imprisonment was inherently an unsuitable subject for a training centre order: in the absence of any statutory authority to the contrary a court had no power to direct that a sentence should run from a date other than that upon which it was passed (or, formerly, from the first day of an assize) and the sentence of imprisonment and the sentence of detention at a training centre would necessarily be concurrent in theory, producing the physical impossibility already referred to: s.68 of the Criminal Procedure Ordinance was the only statutory authority for fixing some other date from which a sentence should run, and that section had no application to what may be described compendiously as "rehabilitative sentences". (It should be noted that s.68 does not apply to any sentence passed in the District Court, because of Part I of the Second Schedule to the District Court Ordinance).

4. We were referred to a large number of decided cases but it is necessary to mention only four of them. In R. v Sapiano (1968) 52 Cr. App. R. 674 it was held that an immediate sentence of imprisonment ought not to be passed at the same time as a suspended sentence, in part because the main object of the suspended sentence was to avoid the actual imprisonment of the offender. In LEUNG Cheung-chung v Reg. Mag. App. 1984 No. 17 a magistrate made an order of detention in a drug addiction treatment centre and further ordered that an existing suspended sentence of imprisonment be activated and run consecutively to such detention. O'Connor, J. said:

"It is wrong in principle to order a sentence of imprisonment consecutive to an order of a rehabilitative nature. In England it has been held that a sentence of imprisonment ought not to be ordered to run consecutively to an detention centre order, R. v Raisis (1969) 53 Cr. App. R. 553 nor consecutively to a sentence of corrective training R. v Talbot (1953) 37 Cr. App. R. 23."

The existence of s. 5A of the Training Centres Ordinance shows that, whereas it is wrong that a sentence of imprisonment should follow immediately upon a sentence of training, it is not ipso facto objectionable that part of a period of training should follow immediately upon a short term of imprisonment. Nevertheless in YEUNG Tak-shing v Reg. Crim. App. 1980 No. 2174 Silke, J. (as he then was) quashed an order for detention in a drug addiction treatment centre which had been made to take effect "insofar as it might not interfere with present sentence he is serving". It seems to have been agreed that the detention under that order would not start until after the Appellant was released on completion of his eighteen month term of imprisonment. The judge then said:

"As presumably he would be given some medical treatment while in prison, as he could be e transferred to the Centre under the provisions of Section 8A of the Drug Addiction Treatment Centres Ordinance, and as presumably he would not have access to drug while he was there, I thought the imposition of a period of detention in the Treatment Centre starting over a year after that particular sentence was imposed to be wrong in principle."

We think that there was no jurisdiction to direct that the period of detention in the drug addiction treatment centre should run from a future date, but we agree that the sentence would have been wrong in principle even if within the jurisdiction of the court.  A sentence of detention in a training centre is not necessarily to be regarded in the same light as one of detention in a drug addiction treatment centre, but we think that the fact that the effective date of neither order can in law be postponed makes it undesirable that either should be imposed to run together with a term of imprisonment.

5. Even if it were permissible to direct that an order for detention in a training centre should take effect upon the expiration of a term of imprisonment, we think that it would be wrong to give such a direction. The purpose of an order under the Training Centres Ordinance is twofold: first, it avoids sending the offender to prison and, secondly, it provides him with training and an opportunity for reformation. It is inconsistent with this purpose that a period of training should begin after the offender has spent a term in prison. That seems also to have been the opinion of the English Court of Appeal (Criminal Division) in Reg. v Donoghue 1963 C. L. R. 375.

6. We concluded that the application should be granted, and then had to decide what was the proper order in the present case.  This was a particularly nasty wounding, in which the victim was attacked first by two men who punched him (one of them being this Respondent) and secondly by a gang of about five others armed with water pipes and iron bars. These five also hit him, and he lost consciousness. He had received multiple lacerations to the scalp and right forearm and a haemotoma on the right forearm, and he lost two teeth. Although the Respondent did not use a weapon, this was found to be a concerted attack. It was argued on his behalf that he was only 19 years old and that if he had been sentenced for both offences at the same time it was likely that a total sentence of two years' imprisonment would have been imposed: he had been released from prison on 6th May and then taken back to the training centre, where he still remained: at the time of his conviction for the robbery there was a favourable probation report, and two much older defendants with previous convictions of a similar nature were sentenced to only three years' imprisonment.

7. In all the circumstances we thought that the proper course was to substitute for the order for detention in a training centre such concurrent term of imprisonment as would enable the Respondent to be released forthwith, and we so ordered.