HKSAR v. Wong Ka Wo

HCMA000846/1999

HCMA 846/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 846 OF 1999

(On Appeal from STCC 700104 of 1999)

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Coram: The Hon. Madam Justice Beeson in Court

Date of Hearing: 25 November 1999

Date of Judgment: 25 November 1999

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J U D G M E N T

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1. This Appellant, who is a juvenile, appeals against his sentence that was imposed in the magistracy, of a Probation Order for an offence of Common Assault to which Appellant pleaded guilty.

2. The common assault resulted from an argument at school between this Appellant and various pupils at the school. The Magistrate did not consider that the injuries caused to the victim had necessarily resulted from any actions of the Appellant.

3. The Appellant asks that a Care and Protection order be imposed in place of the Probation Order, given that the Probation Officer, who prepared the report, recommended that a Care and Protection Order and supervision thereunder, was a suitable way of dealing with the Appellant.

4. The Appellant and his father are concerned at the fact that this Probation Order results in a conviction being recorded, even though it has been explained to them that such conviction is expunged after three years.

5. The Magistrate's main reason for imposing the Probation Order, as opposed to a Care and Protection order, was that the Appellant, up to now, has been extremely poorly supervised by his father, who obviously has to work and who has other interests which preclude him supervising his son. This is shown from the fact that Appellant has already had two warnings from a police Superintendent over his behaviour.

6. The Magistrate also took into account that the father appears to have attributed this particular conviction to bad luck, rather than to lack of proper supervision by him, or his son's poor behaviour generally. He told the Probation Officer that if the victim had not been beaten up by another classmate his son would not have been charged. The officer did have an opportunity of seeing the father and the Appellant over a period prior to this report being produced and considered that there was some change of attitude both on the part of the father and on the part of the Appellant. The officer's recommendation was that there should be 18 months supervision order in terms of the Protection of Children and Juveniles Ordinance, with special conditions that he studies as directed, that he observes all school rules and does not play truant, and that he should observe a home curfew as directed.

7. There is a complaint from this Appellant that he was treated differently from his co-defendant. However, the Magistrate was entitled to take into account separate circumstances pertaining to that other defendant.

8. This is a difficult case and it is not possible to fault the magistrate for imposing a Probation Order in these particular circumstances. She had in mind particularly the importance of the supervision. However, having considered all the factors of the case and taking into account in particular the Appellant's age, I am of the view that the Appellant should be given at least one chance in terms of a supervision order with the conditions as set out by the officer. I would impose another condition and that is there should be a report every four months to the Magistrate. If there is any misbehaviour on the part of this Appellant, the Magistrate can then call him back under the supervision order and, if appropriate, he can be placed in a boy's home for residential and schooling purposes.

9. I think that in view of the Appellant's age and the importance of his father realising his responsibilities towards him, that both of them should be given an opportunity to show whether they can engage properly with the supervision order. I would hope that there would be no further appearance of this child before the court.

10. Now, I would like the Appellant to stand up and I would like to explain him extremely carefully what is going to happen.

11. I have changed the order from a probation order to a supervision order. You will reside with your father and study as directed by that officer. You will observe all school rules and you will not play truant. If there is any suggestion that you are skipping school you will be in extreme difficulty. You would also be under a curfew as directed by the supervising officer and the officer will impose that curfew in the light of the conditions that your study requires and in the light of your own personal conditions regarding attendance at school. If there are extra curricular activities that you require to do e.g. sport or extra tuition, the officer will deal with that matter in terms of a curfew.

12. I should advise you that if you misbehave when you are under this order, the officer has the power to bring you back before the Magistrate with the suggestion that you reside at a boy's home and attend school from there. You have already been given two chances in the form of a Superintendent's warning, this is going to be your last chance in terms of any offences.

13. Mr. Wong, you have not made, up to now, a particularly good fist of supervising this child. You have very few years left before this is child is out of your control altogether. I have placed him under a supervision order and you will co-operate with the Social Welfare Officer who does that supervising. This is not a job that can be done solely by the supervising officer; you are this boy's father and you are responsible for his behaviour. If you have any questions, or any problems with discipline, you should discuss it with the child's teachers or you should discuss it with the supervising officer but bear in mind that you are his father and you are in ultimate charge. Do you understand? Do you have any questions about the order?

14. I am also asking that a report be done every 4 months to the Magistrate. Incorporated in that report will be details of his behaviour at school and whether or not he is attending school. If there is any suggestion that he is not attending school, or he is not behaving, the officer can then suggest residence in a boy's home as long as it is necessary. It is not going to be easy and it may mean that you have to sacrifice some of your personal leisure time pursuits, but nevertheless that is what you are required to do as a father.

15. The appeal is allowed so that the Probation Order is replaced by a Care and Protection Order. The Appellant will be committed to the care of his father and placed under the supervision of a Social Welfare Officer for a period of 18 months, subject to the conditions already explained.

16. The conviction will be quashed as a result.

Representation:

Mr. Alex Lee, S.G.C. for D.P.P.

Mr. TSE Hon, inst'd by William Au & Co. for Appellant - WONG Ka-wo