HKSAR v. Tse Chi Keung

HCMA000958/1998

HCMA958/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 958 OF 1998

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Coram : Hon Gall, J. in Court

Dates of hearing : 26 November and 11 December 1998

Date of judgment : 11 December 1998

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J U D G M E N T

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1. The appellant was convicted on 22nd September 1998 of one charge of robbery and was sentenced to training centre.

2. The facts were that on 15th July 1998, a group of three young boys approached a woman walking in the street in Tai Kok Tsui Road. The woman was pushed and as she stumbled to one side and fell to the ground, her handbag was snatched by the three young men who then ran away. A passer-by called the police and gave chase. The police later found the three young men hiding in a corner of a rear lane and the appellant admitted that he and the two others had agreed to snatch the handbag from the woman, and that his role was to have been to push the woman out of the way, but another young man took the initiative and did so before he could.

3. This was a planned robbery, carried out and but for the vigilance of a passer-by, would have been successful.

4. The Magistrate had before him a Probation Report which he considered carefully, and his approach was to determine the best possible course in the interest of this appellant. That Probation Report recommended probation on terms. It is interesting to note in that report that part of the background of the appellant was that, at the school to which it is now suggested he returns, he had, whilst in Form One, bullied some schoolmates, demanding money from them several times, and that he had had poor school punctuality, had received demerits and minor demerits for smoking and fighting in school. The Magistrate also received a Training Centre Report which recommended training centre and found the appellant suitable for it. In the interest of the rehabilitation of the appellant, the Magistrate sentenced him to training centre.

5. He has appealed that sentence and I now have the benefit of a further Psychological Report, a Follow-up Report from the Correctional Services and a fresh Probation Officer's Report consequent upon his period in training centre.

6. Ms Draycott very fairly concedes that he has shown improvement in the training centre but urges me to follow the Follow-up Probation Report and order probation for two years on condition that he reside at Kwun Tong Hostel for three months, but after his discharge from the hostel, he should remain at home from 10:30 p.m. to 6:00 a.m. and that he should reside, work and study as directed by the Probation Officer. The intention of the Probation Officer is that he should return to The Church of Christ in China Nim Tsi School where he previously studied prior to this offence, and I am urged by Ms Draycott that that would both relieve the unhappiness that he feels at being confined in a training centre, and would give him continuity in that he would return to a school with which he was familiar.

7. I note that the younger brother of the appellant, who has to some degree been the architect of his misfortune, is in the Begonia Boys' Home and will not be released until June 1999, which is the point at which the appellant would come out of Kwun Tong Hostel were I to grant probation.

8. I note in the Probation Report that during her visits to the appellant, the mother has felt there was a slight improvement in their communication. It is quite clear that the family now have come to the realisation that greater help has to be given to the appellant.

9. I must consider not whether the sentence passed by the Magistrate was wrong, but whether a different sentence at this point would be in the best interests of the appellant. The report from the training centre indicates that, after some initial difficulties with catching up with general knowledge and with his abilities to perform the physical training required in the training centre, he is now proceding well with his studies and is not experiencing difficulties. He is being given remedial training in a special workshop and school within the training centre programme and it is clear that from the Correctional Services Report that care is being taken with his particular disability and his particular character.

10. The question that confronts me is : is it better for him to remain in training centre where, although he is unhappy at his incarceration, he is able to get on with the other boys in reasonable harmony, or is it better to have him in the looser supervision of the Kwun Tong Hostel and attending the school where he has in the past been a bully and has had disciplinary difficulties.

11. I must also consider whether the family's realisation of his difficulties are such that they will now be able to help him, and whether the slight improvement in communication between he and his mother is sufficient for him to have a better chance if he is under probation than if he is in the training centre. It has given me consideration anxiety and notwithstanding the help that I have had, I am of the view that he ought to remain in training centre. I know he will be unhappy with this decision, but I think that he will benefit from the discipline and also benefit from the care and training that he is being given there, and the supervision that he will have when he leaves that institution.

12. The appeal is dismissed.

Representation:

Mr A.A. Bruce, S.C., S.A.D.P.P. and Mr Winston Chan, S.G.C., for HKSAR

Ms C. Draycott, inst'd by D.L.A., for the Appellant