HKSAR v. YEUNG SING HEI

HCMA 933/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 933 OF 1999

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J U D G M E N T

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1. On the 16 July 1999 this Appellant, who was then aged 16 was convicted after trial in San Po Kong Magistracy of an offence of burglary and was made the subject of a Detention Centre Order. He gave notice of appeal against both conviction and sentence stating, inter alia, that during his trial crucial evidence which might have been favourable to his case had not been adduced.

2. That evidence was in the form of a close circuit television film from a camera overlooking the automatic teller machine from which it was alleged that the Appellant, with others, had attempted to take cash.

3. In the event (and upon enquiry) it transpires that such film was of no assistance to anybody - least of all the Appellant - because during the burglary somebody had covered the camera apparently so that what was taking place would not appear on film.

4. As I say the Appellant was convicted of the offence (which took place on 10 April 1999) on 16 July 1999 - more than 18 months ago. This appeal first came before the Court of First Instance on 8 December of that year (he being on bail pending appeal) when it was adjourned for enquiries to be made about the CCTV film and for a full transcript of the trial to be prepared. It appears that the next date fixed for the hearing was more than a year later when the appeal came before me on 19 December 2000 and that is a matter of concern. By that time the Appellant (then aged 18) was no longer legally represented and he told me that he had applied for legal aid which application had not by then been considered and, accordingly I adjourned the hearing of the appeal and ordered that the case be set down for mention on 22 January 2001.

5. In the meantime (on 15 January) the Appellant was convicted in the District Court of an offence of trafficking in dangerous drugs. In respect of that offence he was sentenced to a term of 3 years 4 months imprisonment.

6. This morning the Appellant has indicated a wish to withdraw his appeal and it is withdrawn.

7. Whilst I am now told that the Appellant is no longer considered to be suitable for detention in a detention centre that is now academic given his sentence of imprisonment imposed in the District Court.

8. Section 7 of the Detention Centre Ordinance (Cap 239) reads as follows: -

"If a person in respect of whom a detention order ..... is in force is sentenced ..... to a term of imprisonment which is not suspended the detention order ..... shall lapse".

9. The practical effect of that provision upon this Appellant despite the withdrawal of his appeal is that he will not go to a Detection Centre but will serve that sentence of imprisonment.