The Queen v. Chan Tse Yeung

Case No.HCMA 782/1985

Court

High Court CFI

Date23 Sep 1985

Judge—

Case Document

100%Judiciary

HCMA000782/1985

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 782 of 1985

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BETWEEN

The Queen

Respondent

AND

CHAN Tse-yeung

Appellant

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Coram: Hon. Hooper, J. in Court

Date of Hearing: 23 September 1985

Date of Reasons for Judgment: 23 September 1985

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REASONS FOR JUDGMENT

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1. Having allowed the appellant s appeal against his sentence of detention in a Training Centre in respect of a conviction for 'Theft', I now give my reasons.

2. The appellant, a young boy of 17 years of age, pleaded guilty in the Magistrate's Court to a charge of 'Theft', contrary to Section 9 of the Theft Ordinance. The particulars of the offence were set out as follows:-

"That on the 5th of July 1985 outside the Changing Room of Cho Yiu Swimming Pool, Cho Yiu Estate, Kwai Chung in Hong Kong, you did steal one wallet containing cash $1,800 and one Hong Kong Identity Card and one Liu Chong Hing Bank ATM Card and one lady's Rolex wrist watch, the property of TSANG Yee-wah."

The admitted facts were in the following terms:-

	" PW1's Wallet containing cash $1,800-HK, her I/D card, ATM card and a Rolex, w/watch was stolen from her bag at A/A while it was left unattended at the material time. A report was made to police.
	2. On 16.7.35, PW4, an employee of Wing Sing Pawnshop, found PW2 tried to redeem the Watch (E3) which had pawned on 11.7.85. Had alerted by police that it was a stolen watch as it bears an identifiable serial number, he informed police and seized cash $2,500-HK which PW2 used to, redeem the watch. PW2 was arrested by police as well as PW3 who was in his accompany. Upon enquiry, PW2 stated that PW3 is his schoolmate and he pawned the watch on request of PW3's friend (Deft.) because both Deft. and PW3 are under the age of pawning. He had no knowledge of the origin of the watch. Once PW3 told him that it was a stolen watch, he asked Deft to give him $2,500-HK to redeem the watch.
	3. Deft. Was arrested. Under caution, he admitted the theft of the wallet and its content. He asked his friend, PW3, who then asked PW2 to pawn the watch. He deposited the stolen cash and $2,500-HK got from the pawned watch into his US dollars saving account (totally US$350-HK). He had withdrawn US$250 from his account and gave PW2 the said amount (cash $2,500-HK) to redeem the watch. He had thrown away. Remaining stolen property.
	4. PW5 seized the saving account pass book (El) in name of the Deft. Cash $2,500-HK (E2) which was used by PW2 to redeem the watch and the 'Rolex' watch (E3) Were recovered from the Wing Sing Pawnshop at Shanghai Street, Kowloon. PW5 also seized US$100 (E4) being withdrawn from Deft.'s account by Deft. PWl also identified the w/watch (E3) as her."

3. The appellant had a clear record and the learned Magistrate quite rightly called for Detention Centre, Training Centre and Probation Officer's Reports.

4. All the reports were very favourable so far as the appellant was concerned. The Probation officer's Report indicated that in the opinion of the Probation officer it was not necessary to place the appellant on probation and that probation could be dispensed With at this stage. The Commissioner of Correctional Services' Report indicated that the appellant was mentally and physically fit for detention in both a Detention Centre or a Training Centre. However he formed the view after a general assessment of the appellants behaviour and attitude while on remand, that he was more suitable for detention in a Detention Centre.

5. It appears from his detailed reasons for sentence that the learned Magistrate exercised considerable care in reaching his decision. He rightly took a serious view of the appellant's actions and his subsequent behaviour. I respectfully differ from his view that the appellant should have been sent to a Detention Centre. In my view, the Detention Centre should really only be considered as an alternative, if probation is not appropriate. Clearly at this stage of the life of this young boy, reformation was the main aim both in the appellant's interests and also in that of the public. The appellant was not a "hard nut" of the sort for which probation would have been unsuitable. Indeed, the background report of the appellant was extremely favourable.

6. I was of the opinion that given the very favourable report he had received concerning his family background and school record, his participation in extra curricula activities and his membership of the Junior Police Call, Road Safety Patrol and Sports Club, his description by his teachers as a student who was willing to accept responsibilities, his successful award of the bronze cross of the Royal Lifesafing Society, and his apparent deep sense of regret, bearing in mind his very young age and the attitude of his parents to this particular offence, taking all these matters into consideration I considered that the Magistrate should have placed the appellant on probation under the supervision of a Probation Officer. The facts were sufficiently serious in my view to record a conviction.

7. In addition to the reasons I have mentioned there are others of which the Magistrate could not have known, namely that the result of his examinations has now come through and he passed his School Certificate in six subjects and also that he is a blood donor.

8. The appellant had already been in a Detention Centre since the 19th of July and had received a nasty jolt.

9. I did not consider that in the circumstances it was now necessary to place the appellant on probation and I therefore conditionally discharged him under Section 36 of the Magistrate's Ordinance on his entering into a recognizance in the sum of $500 to be of good behaviour and to appear for sentence when called on at any time during a period of 1 year and that a conviction should be recorded.

	(N. B. Hooper)
	Judge of the High Court

Representation:

Mr. Francis Yim (Francis Yim & Co.) for appellant CHAN Tse-young

Mr. G. J. McCoy, Crown Counsel for Respondent