HKSAR v. Chan Ming Yeung Alexis

HCMA001087/2000

HCMA 1087/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1087 OF 2000

(ON APPEAL FROM SPCC 8042/1999)

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Coram: Deputy High Court Judge Barnes in Court

Date of Hearing: 19 January 2001

Date of Judgment: 19 January 2001

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J U D G M E N T

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1. The Appellant was convicted upon his own plea of one count of theft, one count of attempting to obtain property by deception and 5 counts of obtaining property by deception. Probation Officer's Report was called for and on 17 December 1999, he was put on probation with conditions on. Those conditions were:

(i) work and reside as directed;

(ii) undergo Community Support Services Scheme courses as well as treatment from clinical psychologist and other related programme as directed by Probation Officer;

(iii) segregate from any undesirable peers;

(iv) observe curfew requirements from 10:30 p.m. to 7:00 a.m.;

(v) submit random urine samples; and

(vi) complete drug withdrawal treatment if necessary.

2. Progress reports were called for. Suffice to say that the performance of the Appellant was far from satisfactory. After giving the Appellant two chances, the learned Magistrate discharged the Probation Order and sentenced the Appellant to a Training Centre after considering the appropriate reports.

3. The Appellant appealed against the sentence saying that it was too harsh in the circumstances. Mr McLanachan, on behalf of the Appellant, advanced the argument that the Appellant was a disaffected rebellious young man who had difficulties in complying with the onerous requirement by the Probation Officer to produce documentary proof of his employment and medical condition. The Probation Officer should have tried to confirm the Appellant's employment by some other means such as making phone calls rather than making this rebellious and disorganised young man produce documents.

4. Mr McLanachan also placed heavy emphasis on the fact that the Magistrate did not consider the need for a report from a clinical psychologist. He submitted that the Appellant's continuous failure to comply with the request of the Probation Officer despite warnings from the Probation Officer and the Court indicates that he needs the help of a clinical psychologist. He submitted that the learned Magistrate should have called for such a report.

5. Finally, Mr McLanachan submitted that Training Centre is only good for someone much younger. The Appellant will be 21 in a couple of months time, he is better off being put on a Community Service Order so that he could do unpaid community work.

6. Ms Ho, in reply, relies on her written submission and added that in the circumstances, Training Centre is the best option.

7. In order for a Probation Order to work, the co-operation of the probationer is of utmost importance. If the probationer does not even go to see the Probation Officer as and when required, how could the Probation Officer supervise or counsel the probationer? The Probation Officer had indeed repeatedly mentioned the failure on the part of the Appellant to submit documentation. However, it is clear that it was in the context of the Probation Officer not being able to confirm the Appellant's employment and medical condition independently.

8. It is clear from the Reasons for Sentence that the learned Magistrate did not discharge the Probation Order because of such failure. Rather, the learned Magistrate took into consideration the unsatisfactory performance of the Appellant during probation, with the last straw being the submission of forged medical document to the Probation Officer before the third and the last progress report was made.

9. The Probation Officer had indeed in one of the six conditions mentioned "undergo Community Support Services Scheme courses as well as treatment from clinical psychologist and other related programme as directed by his Probation Officer" and there was no reference to any such treatment. It does appear to me that what the Probation Officer had done was to put all the precautionary options as conditions so that he could direct the Appellant if the need arises without having to go back to the Court. I appreciate that the Probation Officer is not medically qualified to decide if the Appellant needs psychological treatment, however, given the fact that the Appellant even failed to attend meetings with the Probation Officer, it is not hard to imagine why there was no such arrangement made, even if such treatment was required.

10. As I have said, the need to co-operate is of utmost importance. The Appellant had clearly indicated, when he spoke to the assessment panel in Pik Uk that he did not consider the Probation Order helpful and wanted the Probation Order to be discharged. He did indicate that he wanted to be put on Community Service Order.

11. I am satisfied under the circumstances, it is proper for the learned Magistrate to have discharged the Probation Order. Once Probation Order has been discharged, the learned Magistrate had to sentence the Appellant for the offences as if no Probation Order was ever made.

12. The offences are serious in nature. They are not a one-off incident, but the Appellant continuously using his uncle's credit card to obtain properties before changing them to cash. Although the Appellant had pleaded guilty, the offences certainly warrant immediate imprisonment should the Appellant be over 21 years of age at the time of conviction. The learned Magistrate had called for Training Centre, Detention Centre report and the Appellant was considered suitable for Training Centre. Although the Appellant was keen to do Community Service Order, given his track record of failing even to see the Probation Officer, it is certainly doubtful if he could be punctual and diligent enough to do the community service. History also shows that giving him warning of the consequences made no difference whatsoever. Although the Appellant is close to 21, at the time of conviction he was 20 and he was considered suitable to be detained in Training Centre as he would benefit from a period of disciplinary training.

13. The learned Magistrate adopted the recommendation and I see no fault in his reason. The appeal is therefore dismissed.

Representation:

Ms Ho May Yu, Lily SGC, DPP for the Respondent

Mr John McLanachan, instructed by Messrs Lee & Co., for the Appellant