HKSAR v. YEUNG SZE LUN

1997, NO. MA 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY CRIMINAL APPEAL

________________

________________

______________________________________

R E A S O N S  F O R  J U D G M E N T

______________________________________

1. The appellant who was D2 pleaded guilty before a magistrate to a charge of theft and was sentenced to a fine of $500.00.

2. He was 15 years and 3 months old at the time of the offence and was jointly charged with another male aged 20 who also pleaded guilty to another charge of theft arising out of the same circumstances and received the same sentence. The appellant filed a notice of appeal against sentence on 25 July 1997. On the same day, he filed a notice of abandonment of his appeal against sentence and lodged a notice of appeal against conviction the following day.

3. The brief facts of the case which were read to and admitted by the appellant are as follows:-

"PW1 was the salesgirl of Lav Motif Ltd which situated at Shop F120, 1/F, 83 Argyle Street, Mongkok. About 1730 hours on 8 July 1997 PW1 was working alone in the shop. Meanwhile, she took a bag of rubbish out of the shop and found two males (identified as the Defts) each carrying something in their hand and walked out of the shop. She turned around to check exhibit (1&2) displayed near the doorway gone.

2. PW1 turned back to see Deft (1) carrying Exh. (1) whilst Deft (2) carrying Exh. (2). She immediately intercepted the Defts and asked what had they done. Deft (1) then said he was taking Exh. (1) to a friend to look at. PW1 then brought the defts back to the shop and call the police. Suddenly, Deft (1) dashed out of the shop. PW1 raised hue and cry. PW2 (a friend of PW1) walked pass and caught Deft (1). Shortly, PW3 attended scene to make investigation. He seized Exh. (1&2) respectively from Deft (1&2). Later, PW3 searched the Defts. From Deft 1's jeans pocket, PW3 found a pair of scissors (Exh. 3) Upon enquiries, Deft 2 stated that the scissors was his. He used it to cut the plastic straps securing Exh. (1&2). After use, he gave it to Deft 1 for keeping. After initial enquiries, the case was handed over to PW4 for further enquiries.

3. Later, PW4 took the Defts and the seized exhibits back to Mongkok Police Station for further enquiries. Under caution, the Defts admitted the offence. Subsequent to investigation, the Defts were charged. At the time of arrest, Deft (1) had $23.-HK whilst Deft (2) had $60.-HK."

4. Before this Court, the appellant, through his counsel applied to withdraw the notice of abandonment of his appeal against sentence, and if leave was granted, to proceed to appeal against sentence. The ground in support of the application was that the magistrate should have dismissed the charge against the appellant and alternatively transferred the appellant to a juvenile court to be dealt with in that court where different procedure and consideration would apply. In his Reasons for Sentence, the magistrate said:-

"Section 96 of the Magistrates Ordinance (Cap. 227) and Sections 10 and 15 of the Juvenile Offenders Ordinance (Cap. 226) empowers the court, inter alia, to deal with D2 leniently. I considered that the case would be best met by the imposition of a fine. It would be unjust to fine D1 and at the same time deal with D2, the leader, more leniently in the circumstances described aforesaid.

I was satisfied that it would be undesirable to remit D2's case to a juvenile court to be dealt with as the circumstances justify D1 and D2 to be dealt with together."

5. Both Section 3F, Section 15 of the Juvenile Offenders Ordinance, Cap. 226 and Section 96 of the Magistrates Ordinance, Cap.227 empower a magistrate to deal with juvenile offenders without having to transfer the case to a juvenile court.

6. Section 3F reads:-

"(1) If a child or young person is found guilty of an offence other than homicide by any court other than a juvenile court, the court shall, unless satisfied that it would be undesirable to do so, remit the case to a juvenile court; and where any such case is so remitted the offender shall be brought before the juvenile court accordingly, and that court may deal with him in any way in which it might have dealt with him if he had been tried and found guilty by that court."

7. Section 15 reads:-

"(1) Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall take into consideration the manner in which, under the provisions of this or any other Ordinance or law enabling the court to deal with the case, the case should be dealt with, and subject to such provisions, may deal with the case in any of the following manners or a combination thereof, namely -

(a) by dismissing the charge;

(b) by discharging the offender on his entering into a recognizance;

(c) by dealing with the offender under the provisions of the Probation of Offenders Ordinance (Cap. 298);

(d) by dealing with the offender under section 96(b) of the Magistrates Ordinance (Cap. 227);

(e) if the offender is in need of care and protection, by dealing with him under section 34 of the Protection of Children and Juveniles Ordinance (Cap. 213);

(f) by sending the offender to a reformatory school;

(g) --

(h) by ordering the offender to pay a fine, damages, or costs; etc."

8. And look at what S.96 Magistrates Ordinance says:-

"Where a person apparently under the age of 16 years is convicted of any offence, the magistrate may, in addition to or in lieu of any other punishment for such offence, order the offender -

(a) to be discharged after due admonition; or etc."

9. The magistrate was clearly acting within his powers and imposed a lenient sentence. There can be no cause for complaint. The appeal is devoid of any merit and I do not understand why it is brought at public expense. The application to withdraw the notice of abandonment of the appeal against sentence is refused.

10. Mrs Levy who appears for the appellant on legal aid, has no instructions to appeal against conviction which is equally unmeritorious. The appellant pleaded guilty before the magistrate and admitted the facts of the case. The appeal against conviction is dismissed.