HKSAR v. CHEUNG MAN YUI

HCMA 612/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 612 OF 2002

(ON APPEAL FROM TMCC 1079 OF 2002)

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J U D G M E N T

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1. The Appellant, a 17 year old male, appeals an order committing him to Training Centre.

2. Together with a 16 year old, he accosted another youth: they took him to a park where he was threatened with being beaten up unless he surrendered all his valuables: he handed over $1 180.00 and a mobile telephone: the Appellant demanded that more money be withdrawn by the victim from a nearby automatic teller machine: a further $500.00 was withdrawn and handed to the Appellant: they fled. The Appellant was convicted on his own plea of guilty to a single charge of robbery.

3. The Deputy Magistrate obtained reports covering the full range of sentencing options open to him. He described the content of the reports, perhaps charitably, as "poor". The Appellant was not recommended for either Probation or Community Service. He was found to be unsuitable for Detention Centre, having already served a term of imprisonment: that was imposed after conviction for another offence of robbery. He was found to be suitable for admission to Training Centre.

4. In 1996 and 1997 the Appellant was warned by a police superintendent for two separate cases of theft. In 1998 when 14 years old the Appellant was placed under the supervision of a probation officer as a result of a conviction for Possession of an Offensive Weapon. In 1999 he breached the terms of that order and was committed to reformatory school. In 2000 he was convicted of an offence of escaping from lawful custody and committed to Detention Centre. In 2001 he was convicted of three offences of robbery and was sentenced to a total of eight months imprisonment. The Appellant has twice failed to answer bail. The reports each record ongoing abuse of cannabis and ketamine. The Deputy Magistrate was effectively left with the stark choice between imprisonment and Training Centre.

5. The point was made to the Deputy Magistrate and has been made again today that an order committing a person to Training Centre results in an indeterminate sentence. That sentence is of not less than 6 months nor more than 3 years in custody. That is so but it is important to remember that the duration of the training is largely dependent upon the efforts of the offender himself. The average period of detention is said to be some 18 months. That is not the "minimum" period as the Appellant expressed to the Deputy Magistrate during review proceedings and repeated today.

6. I do not find it relevant or helpful to equate a period spent in Training Centre with a period spent in jail. The regimes and the fundamentals which drive them are entirely different. A prime purpose of Training Centre is rehabilitative, albeit that it involves a loss of freedom. Training Centre is designed so as to provide facilities for the training and reformation of offenders, under the age of 21, in respect of whom there are still prospects for rehabilitation. After the offender's release there is a period of further supervision during which he or she is assisted in re-integrating into society.

7. The Deputy Magistrate said that he took into account the Appellant's age, the fact that the previous period of imprisonment had had little rehabilitative effect and the circumstances of this offence. He would have been entitled to add that the previous imprisonment had had little deterrent effect as well.

8. The sentence was entirely proper. The appeal is dismissed.