THE QUEEN v. SO HOI MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 366 OF 1996

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JUDGMENT

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1. On 13th February 1996 at Tuen Mun Juvenile Court, the Applicant pleaded guilty to two charges - one of claiming to be a member of a triad society and the other of theft. He was remanded in custody for various reports. When he returned to court on 5th March, the magistrate took the view that what the Applicant needed was what he described as the "short, sharp shock" which the disciplined regime of a detention centre provides, and he sentenced the Applicant, who was only just 15 years old, to detention in a detention centre on both charges.

2. The Applicant appealed against his sentences, and in the meantime he applied for bail pending the hearing of the appeal. That application for bail came before me on 1st April. No date had yet been fixed for the hearing of the appeal, though it was anticipated that the appeal would be heard sometime in May.

3. Within a few days of being sentenced, the Applicant had been sent to Sha Tsui Detention Centre. However, he had been there for only little over two weeks when he was transferred to Pik Uk Prison. That was because of the appeal which had been lodged against his sentences. He would not be returned to the Detention Centre while his appeal was pending. It follows that the magistrate's intention of subjecting the Applicant to the short, sharp shock of the disciplined regime of the detention centre was being frustrated. It was against that background that I told Mr. Anthony Mitchell-Heggs, who represented the Applicant on the application for bail, that I was prepared to hear the appeal itself there and then. Mr. Mitchell-Heggs accepted that suggestion. Mr. Alex Lee for the Crown did not oppose it, and the court then reconstituted itself in open court to hear the appeal. I shall from now on refer to the Applicant as the Appellant.

4. The brief facts, which the Appellant admitted, were that on a day last October, when the Appellant was only 14, he and another boy approached a school-mate in the playground at school. They claimed to be members of the Sun Yee On. Thereafter, they were paid sums totalling $90.00. The Appellant subsequently admitted to the police that he had received a total of $60.00 from the boy on three occasions.

5. The reports on the Appellant which the magistrate had suggested that the Appellant was in need, at the very least, of strong supervision. The report relating to the Appellant's suitability for admission to the Castle Peak Boys' Home prepared by Mrs. Adwina Szeto described him as unruly and as a boy who was regarded by his parents as beyond their control. That view was echoed by a report prepared by a probation officer, Chan Moon Shing. Mr. Chan's opinion was that the attempts of the Appellant's parents to provide a good home for their children had resulted in them being unable to supervise the Appellant in the way in which they would have wished. It was said that they recognised that something drastic had to be done if his delinquency was to be brought to an end, and it was said that they accepted that the Appellant may have to be sent to a reformatory school.

6. Although the Appellant admitted claiming that he was a member of the Sun Yee On, there is an issue as to whether he is in fact involved with triads. He denied both to the police and to the officer who prepared the detention centre suitability report, Lam Wai On, that he was involved in triad activity. In addition, he denied that, initially at any rate, to Mr. Chan. He was saying that he had got to know the sort of language which triads used. However, he eventually confessed his triad involvement to Mr. Chan. He admitted to Mr. Chan that he had followed a member of the Sun Yee On for two years, that he had links with other triad groups in Tuen Mun, and that he had been involved in triad-related activities, including demanding protection money from school-mates and introducing school-mates to the man he followed. Mr. Mitchell-Heggs told me that those admissions (which the Appellant agreed were made) were untrue, and that he confessed to triad involvement because he thought he had a better chance of not getting a custodial sentence because it would demonstrate his frankness. I am very sceptical as to the truth of Mr. Mitchell-Heggs' instructions. It seems to me to be an extraordinary reason for confessing to triad involvement when no such involvement existed.

7. There is also an issue as to whether the Appellant is now remorseful. Mr. Lam expressed the opinion that the Appellant showed a sense of remorse, but Mr. Chan took a fundamentally different view.

8. At the hearing on 1st April, Mr. Mitchell-Heggs urged me not to rely on the reports of Mr. Chan and Mrs. Szeto. It looked, he said, as if Mrs. Szeto was simply basing her report on Mr. Chan's report, and that she had not interviewed the Appellant or his parents herself. As for Mr. Chan's report, Mr. Mitchell-Heggs said that the Appellant's parents had not expressed to Mr. Chan the views which he had attributed to them, and that in view of the differences between Mr. Chan's report and that of Mr. Lam, this was one of those rare cases in which the report of a probation officer should be treated with caution. I was not prepared to reject the reports of Mr. Chan and Mrs. Szeto out of hand, but since Mr. Chan was not fit enough to come to court to explain his views to me personally, I took the view that this was one of those exceptional cases in which a new report from a probation officer should be obtained. I therefore adjourned the appeal until today for that purpose.

9. I have now read the further probation officer's report on the Appellant prepared by Miss Joan Poon. She says that the Appellant claims to regret his commission of these offences, but she does not express a view as to whether the Appellant is genuinely remorseful. As for the Appellant's parents, they told Miss Poon that they did not want the Appellant to be sent to a reformatory school. Indeed, they did not want him to receive a custodial sentence at all. However, Miss Poon's conclusion was the same as that of Mr. Chan that probation was not recommended in the Appellant's case.

10. I can see the force in the conclusion of both Mr. Chan and Miss Poon that open supervision in the form of probation is not appropriate in this case. The lack of supervision the Appellant can get at home, his unruly and delinquent behaviour at school, and the school's reluctance to take him back all suggest some other form of sentence. That would be especially so if the Appellant was indeed a member of the Sun Yee On and not just someone who was claiming to be a member.

11. In those circumstances, the only three realistic sentencing options open to the magistrate did involve detention. The first was detention in a reformatory school. The second was detention in a detention centre. The third was detention in a training centre. The first and third involved detention for at least 1 year or 6 months respectively, but not more than 3 years with the emphasis on rehabilitation through training. The second involved detention for between 1 and 6 months with the emphasis on discipline. As it was, the magistrate did not ask for a report on the Appellant's suitability for detention in a training centre, presumably because he had decided that if the Appellant's rehabilitation through training was appropriate, the venue for that rehabilitation should be reformatory school. I do not disagree with that view. Accordingly, the only choice, once probation was ruled out, was between detention centre and reformatory school.

12. Both Mr. Chan and Mrs. Szeto recommended his admission to a reformatory school. Both of them thought that a reformatory school was appropriate for a boy of the Appellant's age who got involved with triads, who showed no remorse for his behaviour, who had no insight into his problems and who had no concrete plans for the future. I can see the force of that view, but it was based in part on the belief that the Appellant's parents took that view as well. For her part, Miss Poon makes no positive recommendation, and Mr. Lam recommended detention in a detention centre. Although I think I would have been tempted, if I had been the magistrate to order the Appellant's detention in a reformatory school, I must bear in mind that the Appellant and his parents would all regard that as a significant increase in his sentence, and I think that the bitterness which the Appellant would feel as a result of that could be extremely counter-productive.

13. Since detention in a detention centre was therefore a perfectly viable sentencing option, I think the right course for me to take today, subject to one matter, would have been to dismiss the appeal and to allow the order which the magistrate made to take its course. However, the fact remains that the Appellant has now been in custody for a number of weeks. It is bound to have been a severe jolt to his system. He has had, albeit briefly, the short, sharp shock which the magistrate wanted, although not for as long and not of the kind that the magistrate envisaged. His school, though hesitant to have him back, is prepared to re-admit him, and his parents have asserted that they will ensure that the supervision which has been lacking at home will be present in the future. Not without some misgivings, I have decided that this is one of those exceptional cases in which, despite the views of the probation officers, there is a better chance of the Appellant remaining out of trouble in the future if he is given now the chance which he asks for than by endorsing a sentence which, on the material before the magistrate, could not be criticised.

14. For these reasons, and not without considerable hesitation, I have decided to allow the appeal. I set aside the sentences imposed by the magistrate, and provided the Appellant consents, I order that he be placed on probation for 3 years. I do so because I hope that the Appellant by getting this chance will realize that there is more to life than a life of crime.