HKSAR v. TSANG JACK SHENG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.235
(Criminal)

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J U D G M E N T

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

1. The applicant in this matter faced one charge of wounding with intent, contrary to s.17(a) of the Offences against the Person Ordinance, Cap. 212. It was alleged that he and two named other persons, together with others unknown, unlawfully and maliciously wounded Luk Ho-yin with intent to do him grievous bodily harm at the open space outside Fu Yuen House, Chuk Yuen South Estate, on 18th October 1997. Initially he pleaded not guilty to that charge but reversed his plea after his cautioned statement had been admitted by Judge Christie in the District Court. He now seeks leave to appeal against the order that he be detained in a Training Centre.

2. The facts are simple and all too familiar. The victim had met some friends and was talking with them in the open space near Fu Yuen House. They were suddenly attacked by eight to ten males, some of whom were carrying metal pipes. They were subjected to blows from the pipes and to kicks and punches. The victim was beaten about the head and suffered severe injuries. They are detailed as follows:

Multiple wounds over the head;

9 cm laceration over right parietal region;

4 cm laceration over right suboccipital region;

3 cm laceration over right periorbital region;

1.5 cm laceration over left face; and

parietal fracture.

It seems that he has made full recovery but the nature of the attack was such that his injuries might well have been very much worse.

3. The applicant claimed that what occurred was retaliation for an earlier assault. The trial judge obtained probation reports, training centre reports and detention center reports. The Probation Report revealed that the applicant was an ill-disciplined young man mixing in dubious company and living on the fringe of the criminal world. The Training Centre report said that he was suitable for disciplinary training. The trial judge took into account the seriousness of the offence and the age of the applicant. He stated that but for his age, he might well have ordered that he serve a term of imprisonment.

4. At the outset of this application, Mr. Tong, who appears today for the applicant, sought to place before us an affidavit from his mother. It did not raise matters proper for our consideration. The Court of Appeal is not a court of first instance. We sit to consider the propriety of the sentence imposed by the trial judge. An application such as this is an application for leave to appeal against that sentence and matters which could and should have been dealt with by him and which were not placed before him should not be considered by this court.

5. The complaint in this appeal is that the other two offenders, who were aged 16 and 17 were both ordered to be sent to a detention centre. Both were older than the applicant and both had been found guilty after trial.

6. The decision whether or not to make a Detention Centre Order or a Training Centre Order is very much a matter for the trial judge who must consider all of the background features of an offence and of an offender and place those matters in the context of what is best for him and best for society as a whole. It is no easy task to attack the making of such orders on the ground that they give rise to disparity. The decision to make such orders is very much for the trial judge who has a feel of the matter before him.

7. When these difficulties were indicated to Mr. Tong, he stated that he would not be proceeding with the application insofar as it urged disparity. He went on, however, to submit that the Training Centre Order was, in all the circumstances, given the youth of the applicant and given that he has family support, too severe a consequence of what had started out as a very trivial matter.

8. We have considered with care the matters which he has urged and the circumstances of the applicant. We cannot agree that the Training Centre Order was not a proper one. The applicant involved himself in a bad offence which could easily have resulted in a much more serious charge. His behaviour as revealed by the background reports clearly indicates that he is in need of and will benefit from a period of disciplinary training. The order was, in our view, an entirely proper one and the application is dismissed.