HKSAR v. Poon Chi Kuen

HCMA000859/2002

HCMA 859/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 859 OF 2002

(ON APPEAL FROM ESCC 3133/2001)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 15 January 2004

Date of Judgment: 15 January 2004

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J U D G M E N T

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1.The Applicant in this case was original jointly charged with a co-accused with one charge of assault occasioning actual bodily harm. He pleaded guilty and he was eventually sentenced to a term of probation. Shortly after his sentence for probation he was released from Detention Centre on another unrelated matter, but subsequently the prosecution asked for a review of the Probation Order because the Probation Order cannot be made at the time when the Detention Centre Order was in existence. Then on 13 April 2002, a fresh Probation Order was made for 24 months.

2.The learned Magistrate then called for a progress report for the Applicant to appear before him on 11 June 2002. On 25 June the same year, the Magistrate found that the Appellant was in breach of his Probation Order, so the Magistrate then called for a Training Centre and further Probation Report.

3.On 28 June, the Appellant did some injury to himself and he was transferred to Siu Lam Psychiatric Centre. On 9 July 2002, the Magistrate convicted the Appellant of breach of his Probation Order and called for a Young Offenders Assessment Panel Report. On 23 July, on the recommendation of the Panel, the Magistrate sentenced the Appellant to a Training Centre.

4.On 10 September, the Appellant cut his wrist with a nail and he was then hospitalised and a psychiatric report of Dr Sung Wing Kuen was obtained. According to the doctor there was nothing mentally wrong with the Appellant, it is merely that the Appellant had a manipulative character.

5.On 10 January 2003, the Appellant then appealed against his Training Centre Order and that was allowed. He was given a second chance. He sentenced to 18 months probation with 9 months residential condition. On 8 April last year, the Appellant breached his Probation Order by not returning to the hostel. The Appellant was located in June 2003 and when he was at the Aberdeen Police Station he cut his wrist.

6.On 10 July, the Appellant attended court again for breach of Probation Order and in view of the Appellant's continued self-harm behaviour, a psychiatric report was called for. On 24 July last year, he was again sentenced to a Training Centre for breach of his Probation Order.

7.On 30 July, the Appellant was transferred to Siu Lam again because of repeatedly harming himself. In August last year, he asked for a review of the Training Centre Order and that was dismissed. Then he appealed again, this time against the Training Centre Order and that was when the case came before me. At the same time on 11 December, while all was going on 11 December last year, the Appellant had also pleaded guilty to possession of an offensive weapon and assaulting a police officer at Western Magistracy.

8.This court not knowing how to deal with him, called for another updated YOAP Report. The panel, having assessed the background of the Appellant and this case so far, came to the conclusion that the only recommendation they can make is that the Appellant be sent back to a Training Centre, because the panel rightly is of the opinion that the Appellant needs long term character training with emphasis on discipline.

9.In order to dislodge the Appellant's delinquent beliefs and cultivate socially acceptable behaviour, during the time in the Training Centre, it is also recommended that the Appellant continue to receive psychological assistance to help him cope with his temper and impulse control. The psychiatric report from Dr Sung obtained in October last year reveals very tellingly that the Appellant certainly need some sort of guidance.

10.The Appellant was unfortunately born into a family with a history of mental retardation and mental illness. He was in a Boys' Home from the age of 6 to 16. It is therefore clear that he has never received any proper adult guidance and supervision in the past.

11.Dr Sung, who is the visiting psychiatrist of Siu Lam Psychiatric Centre, is of opinion that the Appellant has long standing dissocial and emotionally unstable personality and that the Appellant's suicidal behaviour is likely to be a kind of manipulation. The Appellant, it appears, has enough intelligence to think of ideas to try the moment manipulate the court into giving him a sentence he desire. But the Appellant must realize that at this stage of his life, he does need training and on the two occasions before when he were given a chance by being given probation, he has disappointed the court. This court will never send him to prison as asked for, because it is not the right place for him. This court is not prepared to give up on the Appellant and it is going to give the Appellant another chance by sending him to a Training Centre in order that he can improve himself. The Appellant must also realize that a Training Centre is not a punishment, it is a place where they are going to help him, learn and lead discipline himself and learn to come out to society where he can then find the job and make something of himself.

12.The Appellant's appeal is dismissed, the Appellant will go back to the Training Centre and I will also add this that he be given psychological counselling during his time there.

Representation:

Ms Alice Chan, SGC of the Department of Justice, for the Respondent

Ms Susanna Lee Wai Yan, as assigned by the Director of Legal Aid, for the Appellant