HKSAR v. Lee Kwong Lap

HCMA001117/2002

HCMA1117/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1117 OF 2002

(On appeal from STCC 700161 of 2002)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 10 December 2002

Date of Judgment: 10 December 2002

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J U D G M E N T

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1.The 15 year-old appellant appeals his sentence of detention in a detention center imposed upon him by a magistrate in juvenile court proceedings upon the appellant being found guilty of an offence of possession of an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap.228.

2.The facts of the offence were that the appellant had quarrelled with his father in the family home over the appellant continuously playing computer games. The father had unplugged the family computer and the appellant then armed himself with a cleaver and threatened to chop his father. His father locked himself in his bedroom. The appellant chopped the bedroom door and outside wall many times. The police were called and attended the premises. When they arrived the appellant was still holding the cleaver.

3.Before sentencing the appellant, the magistrate called for a number of reports. Those included a probation officer's report, a boys' home suitability report, a psychological report and a rehabilitation center and detention center report. The Young Offender Assessment Panel met to consider these various reports and in turn their report was provided to the magistrate.

4.Quite apparently, the magistrate took care to have available all information that could be reasonably placed before her as to the appellant's suitability for various rehabilitory options in sentencing. She, as she said in her Reasons for Sentence, considered section 8(8) of the Juvenile Offenders Ordinance, Cap.226 to the effect that the court in sentencing a juvenile offender, had to deal with the case with the best interests of the young offender in mind.

5.The present appellant at the time of the offence had a clear record. He had arrived in Hong Kong with his mother in about 1998 and rejoined his father who apparently worked in Hong Kong at that time. At the time of the offence, the appellant was a primary 5 student. He did poorly at school, often apparently coming last in his class. He had few or no friends. He had a violent temper and was prone to fighting. He had threatened his sister with a cleaver once, again during an argument over the use of the family computer.

6.One of the difficulties in this case is that the appellant committed the present offence during the course of a heated family dispute. It was not a situation where the appellant had threatened or assaulted a member of the public in a premeditated or malicious way. What occurred came about without premeditation or forethought during a trivial and apparently spontaneous family argument. The offence was apparently provoked by way of the appellant's lack of self control rather than by malice.

7.Having said that, however, the appellant's use of a cleaver was a serious matter and was something he had done before. On a prior occasion, as I say, he had threatened his sister with a similar weapon.

8.The magistrate was no doubt prompted to obtain the variety of reports she requested not only because the appellant was a young offender but also because of the circumstances of the offence. A cleaver had been used to threaten and intimidate another family member. Before she returned the appellant to that family she was entitled to take into account all possible information that could be provided to her about the appellant.

9.During the incident, the appellant caused considerable property damage. I have seen, during the course of submissions before me today, some copy photographs of that damage. It is extensive. The appellant apparently used the cleaver continuously and in somewhat of a frenzy on his father's bedroom door and the corridor wall. I have seen also the cleaver. It is a substantial weapon and capable of causing very serious injury.

10.The magistrate, in arriving at her sentence, was no doubt alert to two fundamental and perhaps opposing aspects of the case before her. On the one hand, it is undesirable to impose any form of custodial sentence on a young offender if there is some other more appropriate way available to deal with him. On the other hand, where that young person has demonstrated a propensity for violence and a resort to weapons within a particular environment, including a family environment, to return him to that environment, even if under outside supervision, may itself create risks of a similar or worse offence occurring. And that would not be in the interests of the young offender.

11.In the event, the magistrate thought it best to accept the recommendation of the Young Offender Assessment Panel and impose the detention center order.

12.What does that order entail in the present case? I am told that the average time spent in a detention center by an offender the subject of such an order who is under 21 years of age, is about four months. Presumably, that would be perhaps less for a 15 year-old offender.

13.Mr Khosa, for the appellant, argues that on its face that seems a somewhat disproportionate period of custodial detention for an offence arising out of a family argument over a computer, where although a cleaver was brandished by the young offender and property damage occurred, no personal injuries were caused. He says the most appropriate sentence in those circumstances would have been a probation order. The appellant was found to be suitable for such an order.

14.Without more, there would be considerable strength in Mr Khosa's submission. But there is more.

15.The appellant, as I say, on a previous occasion threatened his sister with a cleaver. He has a history of fighting. And further, and significantly, in the circumstances of this case, he was involved in a fight with another inmate whilst on remand for the purpose of the preparation of the various reports requested by the magistrate. That, in my view, shows the appellant has likely still not got any real self control over his emotions. And it shows also that even whilst under the supervision of the Correctional Services Department's staff whilst on remand and when it was very much in his interests to do so, he still lacked the ability to exercise self control.

16.In determining whether the likely or possible period of custodial detention is disproportionate to the offence, one is entitled to consider the whole of the circumstances of the offence and, where a young offender is involved, is obliged to consider the whole of the circumstances of that young offender.

17.All in all, in my view, it cannot be said the magistrate was wrong in principle in adopting the recommendation of the Young Offender Assessment Panel, in the whole of the appellant's present circumstances and in the whole of the circumstances of the offence, by imposing a detention center order rather than a probation order.

18.To return this appellant to his family environment, which is the same environment which provoked the offence in the first place, without some attempt at reforming him before doing so would, given the background and nature of this appellant, in my view, be asking for inevitable trouble. And importantly, therefore, it would not be in the interests of the appellant.

19.In imposing a detention center order and adopting the Young Offender Assessing Panel's recommendation, the magistrate cannot be said in this difficult case to have been wrong in principle or to have imposed a manifestly excessive penalty. In the special circumstances of the case she was acting, in the longer term, in the interests of the young offender who very obviously would benefit from and requires something more than outside supervision before he returns to his family.

20.The appeal is dismissed.

Representation:

Mr H. Melwaney, SGC of the Department of Justice, for HKSAR

Mr David Khosa, instructed by the Director of Legal Aid, for the Appellant