Li Chi-ming v. The Queen

CACC000279/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 279 OF 1971

-----------------

Coram: Huggins, J.

Date of Judgment: 4th June, 1971.

-----------------

JUDGMENT

-----------------

1. This Appellant was charged jointly with others on five charges and separately charged on one charge, there being altogether two charges of burglary, three of robbery and one of theft. He was sentenced to a period of detention in a training centre in respect of each of the five charges on which he was jointly charged and to six strokes of the cane in respect of the charge for which he was charged separately. He appeals against sentence.

2. Mr. Smart on his behalf has submitted that the sentence of caning should be quashed. He says that in addition to the charges laid against the Appellant three other offences were taken into consideration at the request of the Appellant and that the learned magistrate indicated that he was not imposing any extra sentence in respect of those offences, although he did in his Statement of Findings mention that the Appellant had used violence and threats of violence in several of the offences taken into consideration. In respect of the charges laid, Mr. Smart points out, there is no indication whatsoever that any threat of violence or use of violence was involved. He draws attention to the inherent danger of joining a sentence of corporal punishment to one which is intended to be of a reformative nature, such as detention in a training centre, and he submits further that if corporal punishment were properly inflicted at all it should not have been in respect of the charge in respect of which it was inflicted, for that was one where there was no evidence of violence in fact.

3. Counsel for the Crown does not support this sentence and draws attention to s.4 of the Training Centres Ordinance, which provides that detention in a training centre is to be "in lieu of any other sentence". He suggests that although in the present case the sentence of corporal punishment was not imposed for one of those offences for which detention in a training centre was also imposed, the section does indicate the intention of the Legislature that there should not be joinder of corporal punishment and detention in a training centre.

4. A somewhat similar case was before the Full Court only the other day, but in that case the court found that there was this position, that the sentence of corporal punishment had already been inflicted before the appeal was heard, and the court therefore did not consider it necessary to make any comment upon the desirability of joining the two types of sentence. I am strongly of the opinion (and it is an opinion which the Chief Justice has authorized me to say is also his and which I know to be the opinion of other judges of this court) that it is wrong to impose a sentence of corporal punishment in conjunction with a sentence of detention in a training centre, because a caning under the Corporal Punishment Ordinance is likely to put the offender in an unreceptive frame of mind, which would normally not result from a parental beating. It is true that by virtue of the Probation (Amendment) Ordinance 1971 the Legislature has recently decreed that a sentence of corporal punishment may be imposed jointly with a sentence of probation, but s.4 of the Training Centres Ordinance I think clearly indicates that there is a distinction between a case where corporal punishment is sought to be joined to probation and a case where it is to be joined to detention in a training centre.

5. For this reason the sentence of corporal punishment on Charge F is quashed and there is substituted therefor a sentence of detention in ...(illegible) training centre.

4th June, 1971.

Representation: