HKSAR v. CHOW CHAK MAN AND ANOTHER

CACC 447/1998

HEADNOTE

Community service orders. Guidance on offenders best suited to such orders given in R v Brown (1981)3 CrAppR(S) 294 adopted.

CACC 447/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 447 OF 1998

(ON APPEAL FROM DCCC 564 OF 1998)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. On 27 July 1998 after trial, the applicants, Chow Chak-man (D1) and Li Tak-yin (D2) were convicted in the District Court by Deputy Judge Ma on one count of burglary and D2 was convicted of a further offence of possession of an identity card which belonged to another.

2. D1 was sentenced to imprisonment for 21/2 years and D2 to 2 years and 9 months on the first charge and to one year on the second of which six months were to run concurrently with the first sentence, making a total of 3 years and 3 months. Both now apply to this Court for leave to appeal against sentences only, having before us abandoned their applications for leave to appeal against conviction.

3. The facts are these. The two defendants were found moving goods at the 2nd floor staircase of a commercial building in Mong Kok about 4 am on 1 April 1998. They were intercepted by security guards who spotted them on closed circuit TV. They were taken to the lobby on the ground floor. There D2 escaped when he saw the police arrive. The goods taken were valued at about $60,000 and were stolen from a "beauty house" on the 8th floor. It was in the course of the enquiries made of him that the 2nd defendant produced the identity document in respect of which he was charged.

4. We do not need to go further into the facts at this stage and will refer to them only so far as is necessary.

5. Turning to the defences of the two defendants. D1 said that he was the registered owner of a goods van. On the afternoon of the previous day, 31 March 1998, D2 who was a stranger to him, approached him and placed an order for transporting goods. They arranged to meet at 2 am on the following morning at Tung Choi Street. The 2nd defendant came and told him that the goods were not ready. They waited. Later, D2 took him through another building to the 6th floor of the commercial building in which they were detained. D1 said the lifts were locked so they had to carry the goods down. He met the security officers at the staircase.

6. The judge in the event rejected his evidence in particular the evidence that he did not know D2, as D2 demonstrated to the judge that in fact he had close knowledge about D1 in the circumstances such that D1 clearly must have known him before.

7. D2's version of events was that on 30 March 1998, two days before, someone called Tin Wai, a friend of his and of D1, asked him to contact D1 to arrange to move several boxes of goods and promised remuneration of $2,000. He contacted D1 on 31 March and after making arrangements, they met about 11 pm on the night of 31 March. Tin Wai, he said, was present to give instructions. There were delays. Tin Wai told them to collect goods from Room 803. They went up before midnight and could not find any goods. Ultimately, they went up again at 3.30 am and found nobody but two boxes and two nylon bags.

8. This version, too, the judge dismissed. We mention the two versions simply to demonstrate that D1's version, apart from the fact that he did not know D2 was not inconsistent with having played the minor part. Having said that, we can now proceed to the submissions made by Ms Corinne Remedios for D1.

9. Ms Remedios made a number of submissions. In the event we find it necessary to refer only to one. This concerns the way in which the judge reached his decision to impose a sentence of 2 1/2 years upon D1. At the end of the trial having found the two defendants guilty, he adjourned the matter and made orders for a probation officer's background report, a community service report and a detention centre report. The probation officer's report can only be said to have been most favourable to D1. It was not so favourable to D2. In respect of D1, the report concluded with a recommendation for a community service order. Nonetheless, the judge expressed his conclusion in these terms:

Ms Remedios submits the judge erred in regarding a community service order as being not open to him upon the basis that burglary was a serious offence and also upon the basis of the gravity of the offence. Moreover, she submits, the judge took the view that as a custodial sentence was inevitable, a community service could not be made. She points to p.39 of Cross and Cheung on Sentencing in Hong Kong, 2nd Edition, which clearly shows that community service orders have been imposed in respect of burglary offences on a significant and increasing scale and in her submission demonstrates that view as untenable. Mr Cheung Wai-sun for the respondent seeks to rely upon Secretary for Justice v Li Cheuk Ming [1999]1 HKLRD 63 as in effect disapproving of that practice. But what this Court held there was that in the case of serious offences such as bribery and corruption, a community service sentence could be imposed if there were exceptional circumstances. While the circumstances here do not seem to be exceptional, at the very least it may be that that burglary might not have been regarded as a serious offence by the particular courts concerned. However that may be, here the judge does not appear to have addressed that particular matter and to have regarded himself as simply precluded from imposing a community service order upon the basis burglary was a serious offence and that a custodial sentence was inevitable. Moreover, in the latter regard, it is plain from s.4 of the Community Service Orders Ordinance (Cap. 378), as was held in Li Cheuk Ming, that a community service order is an alternative to a custodial sentence. The judge clearly in that respect has erred in principle. It follows that his conclusion cannot stand.

10. It is here that Ms Remedios's further submission, concerning the types of offender in respect of whom community service orders are appropriate, comes into play. Guidance on the matter was given by the Court of Appeal in R v Brown (1981) 3 CrAppR(S) 294, 295; it is helpfully reproduced at p.40 of Cross and Cheung (op. cit.). The guidance given in Brown indicates that the offenders who can be said to be best suited to community service orders will -

It is to be observed that these characterisations are alternatives. Ms Remedios, however, submits convincingly that in fact that D1 appears to meet all of them. Reviewing them shortly, he can, first of all, be seen plainly to have been a first offender. Second, he comes from a stable home background. That is plain from the probation report. Moreover, it discloses that he has an exceptionally supportive family. Likewise, third, he can be said to have a good work record. Fourth, he is not in employment as he operates a transport business himself; but it is plain that his main customer would continue to use his services and that earlier, before he opened that business, he was in a stable employment situation. Fifth, while he sought originally to challenge his conviction, he can be said to have now shown a measure of remorse in abandoning it today before us and accepting the conclusion of the court. Sixth, we accept Ms Remedios's submission that his circumstances seem to present no more than a slight risk of re-offending. Indeed, we think that he is very likely to reform himself.

11. In the circumstances, as the original order cannot stand, exercising the discretion that the judge should have below, we have no hesitation in concluding that a community service order should be made and upon the conclusion of our judgment, we will seek the assistance of counsel upon the precise terms of the order.

12. We turn then to D2. He can clearly be seen to have played the major part. His grounds are simply these: that the judge had a prejudice against him; that the judge did not consider his role in this case and that his lawyer did not do his best to mitigate for him.

13. There is nothing in any of those grounds. As we said, the facts disclose that he took the major part. There is no misdirection or error of principle in relation to his sentence, and it is not manifestly excessive. Nor is there anything whatever to support his bare allegation that his lawyer did not do his best. There are simply no grounds upon which we could properly intervene in relation to his sentence. We accordingly refuse to extend time. His application for leave to appeal out of time is dismissed.

14. Returning to D1, we grant leave to appeal, allow the appeal, set aside the sentence and we will make the community service order upon which we now seek counsel's assistance.

Representation: