Attorney General v. Chau Yuen

CAAR000001/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 1 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 22nd January 1975.

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DECISION

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Huggins, J.:

1. The Attorney General applies for a review of the sentence passed upon the Respondent for an offence of being a member of a triad society. The sentence was detention in a Detention Centre and police supervision for two years. Mr. Boy, who has appeared to support the application, has sought the setting aside of the order for police supervision on the grounds that it is wrong in principle to add a police supervision order to an order of detention in a Detention Centre and that, even if that were not so, the particular circumstances of this case did not justify the making of the order.

2. It must be mentioned that no application was made by the prosecution for a police supervision order and that the prosecutor was not made aware that such an order was in the contemplation of the magistrate. While the Police Supervision Ordinance does not provide that an application is a condition precedent to the making of an order under the Ordinance it has been pointed out both that the object of supervision orders is to assist the police and that effective supervision requires the co-operation of the police. To make orders in cases where the police consider supervision inappropriate can serve no useful purpose and may even interfere with the effective supervision of persons whom they think to be more in need of supervision. It will, therefore, normally be advisable that a supervision order be made only with the consent of the police.

3. That having been said, the facts remain that it is the magistrate who has to decide whether or not to make a police supervision order and that it is a matter for his discretion. This Court should not interfere with the exercise of his discretion unless satisfied that it has not been duly exercised or has been exercised upon some wrong principle. The purpose of police supervision is in part preventative, by making it more difficult for the supervisee to commit further offences and by demonstrating to him that if he does commit any offence his implication in it is more likely to be detected, and in part merely to assist the police in finding persons they may wish to question in connection with further offences, thus facilitating the punishment of the guilty. It follows that a police supervision order is appropriate only where the conduct of a convicted person has shown that he is peculiarly liable to commit further offences. Thus in Heung Tak Hung v. Reg. ⁽¹⁾ the court said:

"The main purpose of police supervision, as we understand it, is to ensure that in the interests of public security the police are in a position to exercise some measure of control over the movements and activities of persons of known bad character, such as burglars, pickpockets and common thieves, who habitually and consistently lead a life of criminal dishonesty. Police supervision is not imposed by way of an additional punishment; it is imposed simply for the security of the public in the manner in which we have indicated".

It may not be unreasonable to suggest that a member of a triad society, although he has not been shown by repeated convictions to be habitually and consistently leading a life of criminal dishonesty, is a person peculiarly liable to fall into a life of that kind. Even so it should be borne in mind that police supervision, being not itself intended as a punishment but being a restriction upon the freedom of the individual after his punishment has been completed, should not normally be resorted to where the usual punishments have not yet proved ineffective. That is why the court said in So Ma Tsai v. Reg. ⁽²⁾:

"The purpose of [police supervision] orders as we apprehend them is to provide a form of control on release from prison over those persons who by their conduct in the past have shown themselves unlikely to respond to normal periods of imprisonment. It is only in unusual circumstances that such an order should be made upon a first offender."

We think these decisions cannot have been present to the mind of the learned magistrate when passing sentence.

4. Here we must mention that the magistrate has submitted to this Court what is headed "Statement of Reasons". It is helpful to the court upon an application for a review of sentence, as it is upon an appeal against sentence, that the magistrate should indicate the reasons which led him to impose the sentence he did, but it is often overlooked that in giving reasons for verdict or sentence a magistrate should confine himself to the reasons which affected his mind at the time of his decision: the fact that there has subsequently been an appeal or an application for review cannot in the nature of things have been present to his mind when his decision was reached. Since the issue now before us had not been argued before the magistrate it is understandable that he should wish to state the reasons why he assumed that the course he adopted was a proper one, and no one would have objected had he simply reviewed the powers which the law conferred upon him. However, we deprecate the fact that he has, under the guise of giving his "background reasons" for the sentence passed, embarked upon a type of "advocacy" which he himself said was not for him. He appears to resent what, to adapt his own language, he regards as an attempt artificially to fetter magistrates in their sentencing weapons or alternatives. It is for this Court, after hearing argument by or on behalf of the parties to the proceedings, to decide whether the magistrate's decision was such that it ought not to stand and we gain no assistance from argumentative dissertations from those whose decisions are in question.

5. Mr. Boy has argued that detention in a Detention Centre is, contrary to the view expressed by the magistrate, no less rehabilitative than probation or detention in a Training Centre. We agree. It is a mistake to label forms of sentence as being simply rehabilitative, deterrent or punitive, because any sentence less than life imprisonment must contain all these elements in some degree, although, in a given case, any one of them may be intended to be, or may be likely to be, the main active constituent. Certainly detention in a Detention Centre has all three and is not purely deterrent. Although the power conferred upon the Commissioner of Prisons by s.5 of the Detention Centres Ordinance to make orders for supervision by an after-care officer in the Prisons Department need not be exercised in every case, we are told that in practice an order for six months' supervision is invariably made. That indicates the view of the Commissioner that after-care is an important part of the detention treatment. We are of opinion that the concurrence of two forms of supervision might fairly be regarded as harassment and might negative any value that might attach to either one of them. The making of a police supervision might therefore inhibit the exercise of the Commissioner's power under s.5, which we think undesirable.

6. In our view the error in adding a police supervision order to an order for detention in a Detention Centre is not that they seek to achieve different and inconsistent objects but that a convicted person for whom detention in a Detention Centre is appropriate will necessarily not be a habitual offender for whom a police supervision order is appropriate. At the same time there is a danger that the two orders, although not inconsistent, may in practice have an undesirable interaction: the convicted person may regard the police supervision order as an indication that the court does not expect the detention order to be successful in turning him from a life of crime. Nothing is more likely to produce failure in any field of human affairs than a want of expectation of success. The present Respondent had no previous convictions recorded against him. He was arrested when in company with a confessed robber, but that does not make police supervision more suitable for him. There was no evidence to show that he had taken any active part in the activities of the triad society since his initiation and we see no factor which points to the desirability of a police supervision order. Accordingly we direct that the order be set aside.

22nd January 1975.

Representation:

(1) Cr. App. No. 399 of 1969

(2) Cr. App. No. 554 of 1973.