Law Shek Cham v. The Queen

CACC000367/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 367 OF 1971

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CORAM: PICKERING J.

Date of Judgment: 26th July, 1971.

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JUDGMENT

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1. The appellant, a boy of 16, was charged before a Magistrate with robbing an unknown person of a wrist watch. To this charge he pleaded guilty and was sentenced to detention in a Training Centre. He now appeals against that sentence. There is no appeal against conviction.

2. According to the facts of the case as presented to the learned Magistrate, at around half-past seven on the evening of the 6th of May, 1971, detective corporals saw the defendant in the vicinity of Block 12, Li Cheng Uk Resettlement Estate and thought that he was of similar appearance to a youth for whom they were looking in connection with a robbery case. One of the detectives searched the defendant and, finding that he was wearing a wrist watch, took him to the Police Station for further enquiries, having first arrested and cautioned the defendant.

3. At the Police Station the defendant told D.P.C.5490 that he had something to confess, and was then reminded that he was still under caution. The defendant thereupon disclosed information which had nothing to do with the robbery upon the investigation of which the detectives were engaged. The defendant revealed that at 8 a.m. on the 3rd of May he had met a Chinese boy who was unknown to him at the playground outside Block 1 of Li Cheng Uk Resettlement Estate; that he had asked this boy whether the latter had any money, and after subsequently punching the boy twice in the chest, taken away his wrist watch which was, in fact, the watch worn by the defendant at the time he was accosted by the detectives. Subsequently the defendant led a party of detectives to the playground in question but the owner of the watch could not be located.

4. The defendant's own statement to the police constituted the sole evidence against him.

5. Upon his appeal the appellant had nothing to say except that he wished to be released from the Training Centre and sent to the hostel at Kwun Tong where he could earn money to help to support his parents. I reminded him that this ambition accorded ill with the fact that in April of this year he had run away from home, his parents having no subsequent news of him until after his arrest.

6. Mr. Duckett for the Crown said that whilst his instructions were to oppose the appeal and seek to uphold the conviction, he felt it proper to tell the Court that had a certain general instruction of the Director of Public Prosecutions to Police Prosecutors been observed, this charge would never have been brought. The instruction in question, I was told, was to the effect that except in the case of very serious offences where the matter should be referred to the Legal Department for consideration, charges should not be brought where the only evidence was the uncorroborated confession of an accused. It is clear that in the present instance that instruction was either overlooked or disregarded.

7. The Attorney General is the officer of the Government who is empowered to bring prosecutions and he exercises that authority through the Director of Public Prosecutions. It is of the utmost importance that the authority and discretion vested in the Attorney General should remain where it has been placed by the Legislature and that prosecutions not in accordance with the Attorney General's policy should not be instigated by anybody else.

8. On the plea of guilty the sentence of detention in a Training Centre was a perfectly proper sentence, and indeed the learned Magistrate considered that the Appellant was in need of help in the way of training and discipline. None the less, it is wrong in principle that this youth should be deprived of his liberty because of a trespass, knowing or unwitting, upon the authority of the Attorney General, and had the learned Magistrate been aware of the circumstance of which I was made aware upon the appeal he would no doubt have expressed himself in terms which would have resulted in the case being withdrawn.

9. There is no appeal against conviction and the conviction will stand but I allow the appeal against sentence and substitute for the sentence of detention in a Training Centre an absolute discharge.

Representation:

Appellant in person

Duckett S.C.C. for Respondent