Attorney General v. Chiu Wing-hing
Read the full judgment text of CAAR 20/1975 on BabelCite. This Court of Appeal judgment.
1. The respondent in this case was charged upon one count of robbery, two counts of burglary and of attempted burglary. He was convicted upon the burglary and attempted burglary count upon pleas of guilty and a plea of guilty to burglary upon the robbery count was accepted by the prosecution although the facts to which the respondent pleaded guilty would seem to have justified a conviction for robbery. Although the respondent has previous convictions for theft and burglary, in 1972 and 1973, he
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CAAR000020/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) APPLICATION FOR REVIEW NO. 20 OF 1975 -----------------
----------------- Coram: Full Court (Briggs, C.J., McMullin & Leonard, JJ.) Date of Judgment: 11th September 1975 ----------------- JUDGMENT ----------------- 1. The respondent in this case was charged upon one count of robbery, two counts of burglary and of attempted burglary. He was convicted upon the burglary and attempted burglary count upon pleas of guilty and a plea of guilty to burglary upon the robbery count was accepted by the prosecution although the facts to which the respondent pleaded guilty would seem to have justified a conviction for robbery. Although the respondent has previous convictions for theft and burglary, in 1972 and 1973, he was, at the date of the present offences, only sixteen years of age and the learned magistrate called for a Detention Centre report. The relevant part of that report is in the following terms:
Mr. Polson who appeared for the Crown submitted that is view of the terms of Section 4(4) of the Detention Centres Ordinance the learned magistrate had, in these circumstances, no power to impose a Detention Centre order. The learned magistrate however took the view that the Legislature could not have intended to confer an overriding discretion upon the Commissioner of Prisons to deny an offender entry to a Detention Centre when the court was of the opinion that that was the most appropriate form of treatment. 2. Upon the appeal Mr. Penlington contented himself with drawing our attention to the mandatory words of Subsection 4 of Section 4 which he contended made the intention of the Legislature abundantly clear. He conceded that it might seem strange that the court's discretion to impose what it conceived to be the proper sentence should be subordinated to extra judicial control, but he asks us to say that such is manifestly the effect of the language used in Section 4. The court was divided in opinion upon this matter and it remained divided despite a short adjournment for further consideration, at the end of which the contention made on behalf of the Attorney General was upheld and the application for review allowed. A Training Centre order was substituted for the Detention Centre order and we reserved until later giving reasons for the decision for the decision of the court. 3. Section 4 of the Detention Centres Ordinance reads as follows:
We have considerable sympathy with the feelings of the learned magistrate who was evidently unable to believe that the Legislature had intended to give identical discretionary powers to the court in Subsection 1 and to the Commissioner in Subsection 4 and, in addition, to make the exercise of the former's discretion dependant upon a decision of the latter as to "suitability". It may well be that it was the intention of the Legislature that the Commissioner, in considering the question as to "suitability" put to him by the court, should, in giving his opinion, be restricted to considerations concerning the physical and mental capacity of the offender to undergo the rigorous detention treatment. If such was the intention then the Legislature, with respect, has gone about it in a very curious way. Unlike the somewhat similar provisions which may be found both in the Training Centres Ordinance and in the Drug Addiction Treatment Centres Ordinance Sec. 4 does not direct the court to consider the suitability report made by the Commissioner before making an order but directs in set terms that it shall not make an order of detention unless the Commissioner has given his opinion (a) that the young offender is suitable for such treatment and (b) that a place is available for him at the centre. The receiving of an opinion confirmatory of those matters is an essential prerequisite to the making of the order and the inescapable fact is that, in the present case, no such opinion was given. It is plain from the form which the report took in the present case that the Commissioner has interpreted his discretion as covering more than merely the estimation of the physical and mental capability of the prisoner to undergo the punishment since he cleared him on that score and yet found that he was not "suitable". It seems evident that he must have had regard at least to some of the matters which fall to be considered by the court under the provisions of Subsection 1 before calling for the opinion of the Commissioner in the first place. In the upshot, whatever misgivings we may entertain as to the desirability of the provision, it is not possible, in the opinion of this court, to say that the Legislature could not have intended such a result. Indeed the provisions of Subsection 5 may well be taken as an indication that, in considering the offender's suitability, the Commissioner is required to have regard to matters ranging beyond the offender's current physical and mental condition. Be that as it may the law as it stands forbids the making of an order in the absence of an affirmative opinion by the Commissioner and in the view of this court it is impossible to construe the opinion which was made available to the learned magistrate as one which justified the order which he made. Representation: |