HKSAR v. TSUI WAI CHUNG

HCMA425/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 425 OF 2010

(ON APPEAL FROM TMCC 918 OF 2010)

--------------------------------

BETWEEN

--------------------------------

------------------------------------------------------

REASONS FOR JUDGMENT

------------------------------------------------------

1.  On 22 July 2010 I dismissed the appeal against sentence and now give my reasons for doing so.

2.  The 17-year-old appellant was convicted on his own plea at Tuen Mun Magistracy of an offence of assault occasioning actual bodily harm and of an offence of theft.  He was sentenced to detention in a rehabilitation centre.

3.  The facts arose in this way : the appellant and the victim were both residents of the Tuen Mun Skills Centre for the Disabled, the appellant suffering from hyperactivity disorder and attention deficit syndrome.  He also suffered from asthma.  He further claimed before me to be autistic, but there was nothing to suggest that in the various reports before me and indeed in this court he was responsive and controlled throughout the proceedings.  Though speaking in a slightly immature tone of voice he has been found to be of normal intelligence.

4.  The appellant had admitted assaulting the victim of both offences because of damage done to the appellant’s key ring by that victim.  The appellant had, following that assault, taken the Octopus Card of the victim and later used it to buy some snacks.  He subsequently returned it to the victim.  The victim suffered various abrasions and bruising as a result of the assault.

5.  The appellant now says that the sentence imposed upon him is too severe.  He says he finds it difficult to adapt to the rehabilitation centre’s disciplined lifestyle because of what he terms his mental illness, and he also worries about being able to fit back into society.  He says he experienced some difficulty also in taking his medication.

6.  However I have read the various reports provided in this case and agree with the magistrate that a sentence of detention in a rehabilitation centre is appropriate. 

7.  The fundamental problem of the appellant is that he cannot control his temper.  He became too much for his divorced mother to manage and at a young age commenced to live life as it pleased him.  A report on the appellant’s lifestyle from the Tuen Mun probation office is to the effect that the appellant “treated his mother aggressively, indulged in nocturnal activities and associated with triad peers”.

8.  What the appellant really needs is some form of enforced discipline.  His asthma renders him unsuitable for detention centre, but does not disbar him from the less vigorous regime of the rehabilitation centre.

9.  I, as no doubt did the magistrate, considered the fact that when first suspected of involvement in this case, after it was reported to the police, the appellant is said to have attempted suicide.  He has told me today that he sat on the edge of a two to three story building and contemplated jumping, but did not do so. The medical officer has confirmed that the appellant is now fit for detention in a rehabilitation centre and I see no reason to contradict that assessment.

10.  Indeed in a rehabilitation centre he will be under more or less continuous observation and, as I say, the continuing thread through the reports on the appellant I have seen emphasizes his need for discipline.  He is big for his age and has for many years had difficulty in controlling his temper.  He is now at a time in his life where, unless he learns to do so, he will pose a danger to others. I note that in August 2008 he was dealt with for a relatively minor wounding offence, pursuant to section 19 of Cap. 212 and was given a superintendent’s warning.  It is not insignificant that he was released on court bail prior to his sentencing in the present case and breached regularly a curfew condition requiring him to be indoors at his mother’s premises during certain hours.  His mother could not prevent this.

11.  If the appellant is to rejoin the community at minimal risk to others and with the best chance to make some sort of a successful life for himself, then an order such as that made by the magistrate is appropriate.

12.  I am satisfied there is no merit in any complaint advanced by the appellant.  I have no doubt he is struggling a little with the disciplinary programme of the rehabilitation centre.  That is a natural response given the contrast with his previous lifestyle.  I have no doubt the programme at the centre will benefit rather than hinder his return to society and that his medication requirements will be adequately addressed.

13.  I might emphasize that although the Brief Facts refer to the appellant being mentally retarded, his mental disability is restricted to his behavioural disorders and, as I say, he is reported to be of normal intelligence.

14.  One final matter is this.  The appellant is two months into his detention period and is thus eligible to proceed, when found suitable, to the second stage of the rehabilitation programme which is community based; in the sense the appellant will reside in a hostel or halfway house for between one to four months.  That, it seems to me, is an eminently suitable programme for dealing with the appellant.

15.  The appeal was dismissed for those reasons.