Ip Wai-hung v. The Queen

CACC000151/1982

BETWEEN

Coram: Mr. Commissioner Davies in Court

Date: 22 March 1982

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JUDGMENT

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[Juvenile Court. Sentence. Requirement of certificate under section 3F(3) of Juvenile Offenders Ordinance Cap. 226 mandatory. Sentence set aside.]

1. On the 28th December 1971, the appellant, IP Wai-hung, was sentenced to be detained in Castle Peak Boy's Home consequent upon his plea of guilty to a charge of robbery.

2. This appeal was against that sentence.

3. Counsel for the appellant, Mr. Hoo, relied upon several grounds of appeal, but one of them was so manifestly formidable that Miss Plumptre, who appeared for the Crown conceded that the appeal must be allowed.

4. Being of the same view as learned counsel, I accordingly set aside the sentence, and now give my reasons for so doing.

5. The history of the case is that the appellant, who is 14 years of age was charged together with 5 other youths who varied in age from 14 years to 17 years, and all of whom were charged with the same single charge of robbery.

6. Their first court appearance was in Tsuen Wan Magistracy before the learned magistrate, Mr. Crawshaw on 14th December, 1981.

7. Mr. Crawshaw adjourned the case until the 17th December, when the six defendants appeared before him again.

8. Pleas were then taken, the appellant and two others pleading guilty while the remaining three denied the charge.

9. Mr. Crawshaw then ordered that Reformatory School, Training Centre, Detention Centre and Probation Officer's reports be furnished in relation to the appellant and his two co-defendants who had pleaded guilty.

10. At the same time, Mr. Crawshaw transferred the case to the Juvenile Court for hearing twelve days hence.

11. On the 28th December, the appellant and, his two co-defendants appeared before the learned magistrate, Mr. Duffus, who was then sitting as a Juvenile Magistrate.

12. Having perused such reports as were then available, Mr. Duffus proceeded to sentence the three defendants, inter alia committing the appellant to Castle Peak Boys' Home.

13. In this appeal, Mr. Hoo referred to the provisions of section 3F(3) of the Juvenile Offenders Ordinance whereby, so he submitted, in the event of transfer of a case from any court to a Juvenile Court, it is mandatory that a certificate be transmitted to the Juvenile Court setting out the nature of the offence and stating that the offender has been found guilty thereof, ect.

14. It is common ground that no such certificate was in fact transmitted from Mr. Crawshaw's court to Mr. Duffus. Indeed the matter is referred to by Mr. Duffus in paragraph 6 of his Statement of Findings.

15. Mr. Duffus states that he regarded the provision as directory rather than mandatory.

16. With respect, I disagree. The first part of the subsection provides that the original court may give necessary directions for the custody or bail of the offender, but it then goes on to say that the certificate shall be transmitted to the Juvenile Court. That wording clearly creates a mandatory provision.

17. There are good reasons for making the certificate compulsory, and as Mr. Hoo pointed out, the present case is an example of them. The three defendants who pleaded not guilty were acquitted, on the basis that their proven misconduct did not amount in law to the offence of robbery.

18. It appears that the evidence disclosed that there was a fight between two groups of youths. The group of which the appellant was a member gained the upper hand whereupon the other group retreated from the battlefield leaving their belongings behind.

19. Those belongings were subsequently taken away by the appellants' group as the "spoils of war".

20. Whether that information was before Mr. Duffus at the time of sentence in not clear from his Statement of Findings; but the tenor of his statement strongly suggests that it was not.

21. Had there been a certificate setting out "the nature of the offence", Mr. Duffus could have been made aware of those facts.

22. Accordingly, on this ground alone, I allowed the appeal and set the sentence aside. Both counsel agreed that considerable further delay would be avoided if I were to substitute another sentence or order in this court instead of remitting the case back to the magistrate, and I have thus adopted this course.

23. Mr. Hoo then proceeded to address me in mitigation on behalf of the appellant. The main thrust of his argument was that the Probation Officer's report in the court below may have been coloured by a previous conviction of the appellant for theft - a conviction which was ordered not to be recorded.

24. The learned magistrate had very pertinently and fairly made mention of this in his Statement of Findings, adverting also to the judgment of Huggins, J.A. in LI Hok-ming v. R⁽¹⁾

25. Mr. Hoo commended that decision to me, and urged me to call for a further Probation Officer's report, and an up-to-date report from the Castle Peak Boys home.

26. I acceded to this request. The Boys' Home report was to the effect that the appellant's progress there was disappointing, giving the impression that the appellant felt out of place there, and was not benefitting from the training. The Probation Officer's report on the other hand was favourable, the reporting officer being optimistic that the appellant would respond to supervision.

27. This being so, and bearing in mind the still-tender age of the appellant, I decided to give him one further chance to mend his ways without being kept in custody.

28. I have placed the appellant upon 2 years of probation supervision with a special condition that he shall attend school and/or take up employment only as directed by the Probation Officer. The latter has also been asked to supply me with quarterly reports upon the appellant's progress.

(1)    Criminal Appeal No. 176 of 1978

Representation:

Mr. Alan Hoo (Gallant Y.T. Ho & Co.) for appellant

Miss Plumptre, Crown Counsel, for Crown/respondent