Tang Ho Cheung v. The Queen

CACC000343/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 343 OF 1980

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Coram: Bewley, J. in Court

Date of Judgment: 21st May, 1980.

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JUDGMENT

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1. The appellant, who is now nearly 18, pleaded guilty in March this year to one charge of robbery. He was ordered to be detained in a Training Centre and it is against that order that he now appeals.

2. The offence took place in March, 1979. A young couple was sitting in Kowloon Tsai Park, at 7.30 p.m. when they were approached from behind by the appellant and another person. They were forced to hand over their personal belongings.

3. It is not clear whether either culprit was armed with a weapon. When the summary of facts was read to the appellant, he claimed that neither he nor his accomplice was holding a knife at the time. Presumably this was because the summary of facts included the sentence, "One of the pair was at this time brandishing a knife". These words have now been deleted.

4. Unfortunately, the Learned Magistrate then appears to have asked the male victim for his version. The record reads, "Victim says he was grabbed from behind and something pointed was held against my neck - slight injury. We were searched and property was taken". There is no indication on the record whether the appellant was asked if he admitted this allegation, or indeed if he was asked to say anything further at that hearing. In these circumstances, it cannot be said to have been proved that the appellant, or his accomplice, was holding a weapon.

5. The procedure adopted by the Learned Magistrate was improper. If, on a plea of guilty, a defendant disputes some aspect of the facts alleged by the prosecution, and the latter is not disposed to concede the point, the Court should invite the prosecution to lead evidence. The defendant will cross-examine the witnesses and should then be given an opportunity to give evidence himself and call witnesses. The Court will then come to a conclusion. If this is not done when the defendant denies the allegation, his denial must be accepted.

6. The case was then adjourned for reports. The Probation Officer reported that, after committing the offence, the appellant had shown remorse and, indeed, had gone back to China, where he had remained for five months working as an apprentice mechanic. He returned to Hong Kong and worked in a construction site, where he was able to earn $1,400 a month. His parents stated that his behaviour was greatly improved. The Probation Officer concluded that the appellant seemed determined to behave himself and, in view of the parental co-operation, recommended probation.

7. The matter was complicated by the fact that the appellant had a previous conviction for being a member of a triad society, and also by the fact that, having a peptic ulcer, he was unfit for the Detention Centre.

8. The Learned Magistrate was torn between the remorse shown by the appellant for his offence and his plea of guilty on the one hand, and the public interest that requires a deterrent penalty for this offence. I appreciate his difficulty.

9. It would appear that, when he came to write his Statement of Findings, the Learned Magistrate appreciated that the use of a weapon had not been proved. One of the factors that he says he took into account was the appellant's statement that a knife was not used and that he was not the principal offender.

10. I was impressed by the demeanour and obvious remorse of the appellant. I think the prospects of his committing another offence of this nature are remote. He has already served two months in a Training Centre and has, therefore, already suffered some punishment. I do not think a Training Centre order in this case was wrong in principle, but, in the circumstances, I find it possible to temper justice with mercy. The appellant is willing to be placed on probation. I, therefore, make a probation order for 2 years, with a special condition that he reside and work as directed by the Probation Officer.

Representation:

Appellant in person

Mr Freeman, Crown Counsel, for respondent