Yu Wing Yam v. The Queen

CACC000320/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 320 OF 1971

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Coram: Huggins, J.

Date of Judgment: 29th June, 1971.

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JUDGMENT

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1. In 1970 the Appellant and another young man were jointly charged with assault with intent to rob and with robbery with aggravation. This Appellant pleaded guilty and he was put on probation for 12 months, presumably in respect of both charges, and no convictions were recorded. This year, on 8th May, he committed a further offence of robbery and was convicted. The circumstances of that case are not before me and they have not been gone into. What we do know is that the learned Magistrate, after careful consideration, decided to pass a sentence in respect of this new offence of 2 years' probation. He did that having received a Probation Officer's report which suggested an extension of 6 months. I would mention that although that report was mentioned in the papers which were placed before me, the report itself was not included. It ought to have been included and I had to send for it. It has been shown to counsel for the Appellant who has made use of it in the course of his submission.

2. The learned Magistrate, however, drew attention to the fact that the offence on 8th May 1971 constituted a breach of the probation order which had been made in respect of the previous offences and the present appeal relates to a sentence which was imposed by the learned Magistrate in respect of the second of the two charges from last year. The learned Magistrate was strongly of opinion that the Appellant "should not be allowed to get away scot free with the offence for which he had been put on probation in 1970 and that he should be made to realise that probationers who break the conditions of their probation cannot properly and will not be allowed to do so with impunity". With that view I strongly agree. Indeed it seems to me that we are not doing justice to the Probation Service if we allow probationers to think that they can disregard the terms of their probation orders.

3. Mr. Donnelly has taken me through a number of statutory provisions and pointed out the powers of a magistrate in dealing with young offenders. I use that phrase in a non-technical sense. At the date of the offences in 1970 this Appellant was under the age of 16. He was, therefore, "a young person" within the meaning of the Industrial and Reformatory Schools Ordinance: he was "a young person" under the definition in the Juvenile Offenders Ordinance. But at the date when sentence of 9 strokes of the cane was passed he was over 16 and was no longer a "young person" within the meaning of those ordinances, and under the Corporal Punishment Ordinance, s.5, he was a person who was an offender "above the age of 14 and below the age of 17", in respect of whom the number of strokes which might be imposed should not exceed 12. There has been some discussion as to the powers of a magistrate in imposing a sentence in circumstances like this and I do not propose to go into the matter in detail. Obviously one has to look at each Ordinance carefully and see whether the material date for assessing the age is the date of the offence, as it is under some Ordinances, or the date of the sentence, which it is under other Ordinances, but I do not think that this really affects the present case. Mr. Donnelly has referred me to Fung Man Cheung v. Reg.⁽¹⁾, which is authority for the proposition that normally caning should not be imposed for a first offence in the absence of a substantial measure of violence. This offence in respect of which the Appellant was sentenced to caning was a first offence in the sense that although he was charged with two offences at the same time, of which, this was one, he had not been convicted before. However, he cannot now, in my view, be treated as a first offender and I think that Mr. Boy is right when he says that this case is clearly distinguishable and that it is open to a magistrate, where a person who was a first offender when placed on probation is to be sentenced because he had committed a breach of probation, to consider caning even where there is not a substantial measure of violence. In the present case there was, of course, some violence: whether it can properly be described as a "substantial measure" is possibly open to argument, and in this respect I would observe that although the caning was imposed for the robbery with aggravation that was an offence in respect of which the Appellant was convicted upon his own admission - he was arrested in respect of the first offence: the second offence was one which he voluntarily confessed to - and I would have felt happier had the sentence of caning been imposed in respect of the first offence (in which a knife was used) rather than the second, but I think that nothing turns upon this.

4. In my view the learned Magistrate had a very difficult decision to make. He formed the opinion that caning was appropriate and I am unable to say that he was wrong in coming to that conclusion. However, as I have indicated, the maximum number of strokes which could be imposed was twelve and in all the circumstances I think that I may properly reduce the number of strokes from nine to six. I shall so order and the appeal is allowed to that extent but to that extent only.

29th June, 1971.

Representation:

(1) 1963 H.K.L.R. 18