HKSAR v. LI TAK WING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.746
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced one charge of burglary, it being particularized that on 8th February 1997, at Tuen Mun, having entered as a trespasser a building known as Flat D, 28th floor, Block 7, Melody Garden, he stole a camera from those premises. He was convicted after trial before Deputy Line and ordered to be sent to a training centre. He now seeks leave to appeal against both conviction and sentence.

2. The facts were that the applicant's uncle had a camera stolen from his premises, which are the premises listed in the charge, on 8th February, the date particularized. Two days later, a person using the identity card of the applicant pawned that camera. We do not intend to traverse the facts. Indeed the applicant has not raised any matter of appeal other than to say that there were too many inconsistencies in the evidence.

3. The judge carefully canvassed all of the facts. He was satisfied that the applicant's suggestion that someone else has used his identity card to pawn the camera was wholly incredible and rejected it. Relying, as he was entitled to, upon the doctrine of recent possession, he was satisfied that the applicant was guilty of the theft of the camera in the burglary. There was, we are satisfied, clear evidence to justify that finding.

4. The application for leave to appeal against conviction is dismissed.

5. The applicant also seeks leave to appeal against the Training Centre order saying that he considers himself not suitable for training centre. That was not the view of the trial judge. He said:

"You have 12 previous convictions. You have been to DATC twice and to prison. Those convictions include offences of dishonesty, including burglary. It is quite clear you have got to lose your liberty. Since you were under 21 at the time of conviction I am bound to look at an alternative to prison and Training Centre is the obvious alternative here. It is a sentence that is thoroughly merited by both your circumstances and the crime.

I have borne in mind that the Correctional Services report says you are not suitable but the basis of that is because you are a drug addict. It is a fact that as long ago as 1988 in the case called r. v. Lee Yin-yee, which was Appeal Case No. 346 of 1987, the Court of appeal was complaining that the courts could not combine DATC and Training Centre together. Despite the weight of that complaint the legislature has not acted on the suggestion. So even though the same service runs both institutions I have to look at them, and they treat people who go to them, as completely separate.

If I were to send you to DATC that would be inadequate punishment for the crime you have committed, and the fact that you are prey to the vice of drug addiction does not justify you in receiving an unmerited lenient sentence. That is why I have made the Training Centre order."

6. We are in complete agreement with all that was said by the trial judge. The applicant will clearly benefit from the strict discipline of a training centre.

7. His application for leave to appeal against sentence is also, therefore, rejected.