Ng Kwok Chiu and Others v. The Queen

CACC000312/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 312 OF 1971

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Coram: Huggins, J.

Date of Judgment: 7th July, 1971.

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JUDGMENT

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1. This is an appeal against sentence. The three Appellants pleaded guilty to conspiracy to commit an affray. Acting on information the police went to a place where they found a number of young men and it was obvious from what they found that a fight was developing: they overheard a discussion at which plans to fight were being made. The Appellants were stopped and they were found to have weapons on them.

2. Probation Officer's reports were placed before the learned Magistrate and in each case the report was not entirely favourable. Indeed, chiefly on the strength of these Probation Officer's reports the learned Magistrate made orders for detention in a Training Centre in respect of each Appellant.

3. The first Appellant had one previous conviction and had spent six months in a Boy's Home while the second Appellant had one conviction for larceny of fixture and had been on probation for one year. The third Appellant had a clear record.

4. The first Appellant is 17 years of age and the other two are only 16. They have come before me asking for leniency. In the case of the first Appellant there does seem to be some prospect that parental control can be given to him: in the case of the other two Appellants there seems to be nobody who is able to take control of them. This is particularly unfortunate in view of the fact that the first Appellant is the oldest of the three. Nevertheless, I do not think that should deter me from taking the course which I have in mind to take. Although the father of the first Appellant is unable to provide a satisfactory home for him, his uncle is able to do so and the first Appellant has been, in fact, working with the uncle. I have had the opportunity of a discussion of this matter not only with the Probation Officer but also with the After-Care Officer of the Training Centre. I had this discussion because the papers seemed to indicate that there was a difference of opinion as to the manner in which this young man should be dealt with. It has been of the greatest assistance to me and I think I may say that what I am about to do has the approval of both these officers, so that any difference of opinion that may have existed has obviously been resolved. The first Appellant has agreed that I should make a probation order for two years on the usual conditions together with a condition that the first Appellant live with his uncle and that he be at home by 10:30 o'clock every night, and the father has agreed to stand surety for his good behaviour in the sum of $250. I have emphasized that this is in the nature of a co-operative venture and I hope that the uncle will co-operate with the Probation Officer as fully as he can in the first Appellant's own interest.

5. As to the other two Appellants, after discussion of their position I am unfortunately unable to take the same course. It is apparent that they also require careful supervision and no such supervision is available outside the Training Centre.

6. Accordingly, upon the further evidence that I have before me, I am disposed to allow the appeal of the first Appellant and to substitute a probation order on the terms I have indicated, but the appeals of the second and third Appellants must be dismissed.

7th July, 1971.

Representation: