The Queen v. Chan Lai-har

HCMA000028/1984

A sentence of detention in a training centre is wrong in principle if protection of the public was the sole reason for motivating the magistrate to pass that sentence. The magistrate should consider all the matters set out in Section 4(1) of the Training Centre Ordinance, Cap.280.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.28 OF 1984

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BETWEEN

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Coram: Hooper, J.

Date: 1 MAR 1984

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REASONS FOR JUDGMENT

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1. In this case the appellant CHAN Lai-har, an eighteen year-old girl, appealled against the sentence imposed upon her in respect of theft when she was sentenced to be detained in a training centre. The appeal having been allowed and she having been placed on probation with her consent, I indicated that I would give my reasons later. I now do so.

2. The appellant had been charged that on the 19th of November 1983 at Kowloon she stole one pack of chocolate the property of Dodwell Department Store. She pleaded guilty to the charge and admitted the brief facts of the case which are as follows:

"     PW1 is a plain clothes security officer of Dodwell Department Store at Ocean Terminal, Tsimshatsui, Kln and she was on duty there on 19,11.83, 2.     At approx. 1210 hrs. on 19.11.83. PWI observed the defendant taking a pack of chocolate from a food shelf.   The defendant then walked to a corner and put the.pack of chocolate into her handbag she was carrying. A while later, the defendant walked out of the store without paying to any cashiers. 3.     PWI. followed and stopped the defendant and recovered the pack of chocolate from the defendant's handbag outside the store. The defendant said she was momentarily greedy. 4.     Police were informed and PW2 attended the store a few minutes later to arrest the defendant and seized the pack of chocolate as exhibit after initial enquiries. Later in the day, the defendant was formally charged with the captioned offence and bailed to appear in South Kowloon Court on 21.11.83 for plea."

The appellant admitted she had one previous conviction of a similar type on the 17th of September 1983 when she had been fined $500.

3. The Magistrate called for the usual reports and having studied those reports he sentenced her to detention in a training centre. The reasons for his decision are. set out in a statement of findings dated the 12th of January 1984 as follows:-

"      Conflicting views were held by the probation officer and the Training Centre intake officer in their reports as to the attitude adopted by appellant towards this conviction. The former was more charitable and spoke of appellant's sincere repentant attitude, her willingness to reform and so on, so much so that she recommended twelve months' probation as appropriate in this case, whereas the latter described appellant as appearing to be submissive and timid, but tricky and close-up, without any regret for what she had done. The intake officer took the view that appellant might benefit from strict discipline and supervision. Appellant certainly did not impress me in court as feeling in any degree remorseful for the offence she had been convicted. Protection of the public and rehabilitation of appellant were balanced precariously. Finally. The scale was tipped in favour of the former when I took into consideration that appellant had been convicted of a similar offence only a little more than two months prior to the commission of the present offence. Appellant's own reticence further narrowed what little room that was left for manoeuvre. In passing sentence, whilst bearing in mind appellant pleaded guilty to the charge, I was also aware that shop-lifting was an extremely prevalent offence in this territory."

4. It would appear from his reasons that the Magistrate seemed to think that the protection of the public and the rehabilitation of the appellant were matters which had to be weighed against each other. If protection of the public was the reason for motivating the magistrate to pass a Training Centre Order then in my view he acted on a wrong principle.

5. Section 4(i) of -the Training Centre Ordinance Cap.280 provides

"Where a person is convicted of. an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than fourteen by under twenty-one years of age, and the court is satisfied that it is in the interest of the community and having regard to his character and previous conduct and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu any other sentence, pass a sentence of detention in a training centres."

These are all matters which must be weighed together. Having weighed them the court must decide whether it is expedient for the appellant's reformation and for the prevention of the crime that she should undergo a period of training in a training centre.

6. Clearly in a case of an eighteen years old girl, whose crime was to steal a pack of chocolate from a supermarket, and who has one previous conviction of a similar type for which she was fined $500, the most important consideration is her reformation.

7. A sentence of detention in a training centre is a custodial sentence. In my view a magistrate, who is considering passing such a custodial sentence on an offender should first consider whether a period of probation is likely to lead to a satisfactory result.

8. In the present case having read the reports and having had a further report from the probation officer delivered in open court, and the appellant having indicated that she was prepared to consent to the making of the probation order I was of the opinion that reformation could be accomplished without a custodial sentence and I allowed the appeal, set aside the sentence of detention in a training centre and substituted therefore an order for twelve months probation with the usual conditions and with the special conditions that she will study, word and reside as directed by the probation officer and she will stay in her residence between midnight and 6 a.m. unless with the prior approval of the probation officer.

Representation:

Mr. B. K. Ho instructed by DLA for the Appellant.

Mr. K. J. Oderberg, Senior Crown Counsel for Crown/Respondent.