THE QUEEN v. KWOK NGAI MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 43 of 1991

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BETWEEN

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JUDGMENT

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1. On 6th December 1990 the appellant was convicted, on his own plea, of burglary, contrary to section 11(1)(b) of the Theft Ordinance, Cap. 210, Laws of Hong Kong, and sentenced to detention in a Training Centre.

2. He now appeals against sentence. The appellant (D2) admitted the summary of facts which indicated that on the 13 September last year at about 10:30 am Miss LEE Kwai-siu (PW3) returned to her home on the 7th Floor, No. 59 Prince Edward Road West but could not open the main door. She then pressed the door bell.  A few minutes later, three males, one of whom was identified as the appellant suddenly opened the door and rushed out of the flat to flee ownstairs.  At about the same time, the other resident of the flat, Miss WU Chong (PW1) together with her friend Miss-LIU Wing-ping (PW2) happened to see the three males mentioned leaving the building in a hurried manner. Miss WU Chong noticed that one of the males (D1) was the boyfriend of her younger sister NG Lai-wah (PW6). PWI and PW2 felt curious and followed the three males but soon lost sight of them. PWI then informed her father (PW4) NG Kin-man, and together with PW3 reurned to the flat and found the premises ransacked with cash and assorted gold ornaments (i.e. cash $2,150 HK, cash $2,200 Baht,  two gold necklaces, two gold wrist chains two gold finger-rings and one case of K-gold ornaments) were stolen. A report was made. The total value of the stolen property amounted to $9,250. The property aforesaid belonged to PW4 and PW3 respectively.

3. PC 23081 (PW7), PC 1591 (PW8) and PC 23439 (PW9) of Emergency Unit, Kowloon West, arrived at the scene and took PWI and PW2 to check the nearby vicinity and located D1 and D2 at Sai Wan Billiard room, 1st Floor, No. 48, Wong Tai Street, Tai kok Tsui. A bunch of 2 keys (exh. 4) which could open the victimized premises. were seized from D2. DI and D2 were arrested for the above offence.

4. Under caution, D2 admitted that he committed the offence with D1 and the other male. He obtained $530 as his share (exh. 5). The money was seized as an exhibit. Later, D2 was taken back to the scene where the keys could open the main entrances of the victimized flat.

5. PW6, the girl friend of D1 was located and confirmed that she had lent her home keys to D1 on 11th September.1990

6. PW13, an officer attached to the Identification Bureau attended the scene of crime and lifted one palm print and two fingerprints. After comparison, D2's fingerprint was found on a tin box in the victimized premises.

7. The appellant (D2) had a clear record and the counsel for the appellant, Mr Peter WAN, addressed the court in mitigation pointing out that the appellant was only 17 years of age, that he worked in the Coby Garment Factory in Tsuen Wan and earns 5,000 per month.  He is single, lives with his parents and one younger sister, and ever since he started working, he has contributed half of his earnings to his mother to look after the house. Mr WAN Urged the magistrate to give full credit for the appellant's plea of guilty and the fact that he had been in police custody for 2 days and 7 days in jail custody. He asked the court to accept that the appellant was remorseful and asked that he be treated leniently.

8. The learned magistrate quite properly called for a probation report & reports from the Commissioner of Correctional Services regarding suitability for Detention in a Detention Centre and a Training Centre.

9. The report from the probation officer was a very satisfactory report.  He was of the opinion that probation would be appropriate and recommended that the period be 18 months with special a condition that the appellant shall work and reside as directed.

10. The report from the Commissioner of Correctional Services found the appellant medically unfit for detention in a Detention Centre because of a heart murmur. However, he was satisfied that the defendant was medically fit for a Training Centre and that he was suitable for detention in a Training Centre.

11. It was of course no part of the Commissioner of Correctional Services' brief to consider whether probation was more appropriate than detention in a Training Centre. He was concerned with the question as to whether the appellant was suitable for detention in either a Detention Centre or a Training Centre.

12. It would appear that the offence, though serious in this case, was out of character and that there is a very good chance that should the appellant be placed on probation, he will keep to the terms of the probation order and will be of good behaviour and lead an industrious life. It would appear that there is a very good chance that he will be reformed if he is placed on probation, and that it will not be necessary for this court to ever deal with him again. A Custodial  sentence should only be passed if there is no other appropriate way of dealing with him. I consider probation is appropriate.

13. I allow the appeal and substitute therefore a probation order, with the appellant's consent, placing him on probation for a period of 18 months on the usual conditions that he will be of good behaviour and lead an industrious life, that he will keep the peace, that he will keep in touch with the probation officer in accordance with such instructions as may from time to time be given by the probation officer and will, if the probation officer requires it, receive visits from the probation officer at his home. There is a special condition that he will reside and work in accordance with the directions of the probation officer.

14. I have also requested progress report every 3 months.