Li Kwok Lun and Others v. The Queen

CACC000388/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 388 OF 1971

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Coram: Pickering, J.

Date of Judgment: 28th July, 1971.

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JUDGMENT

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1. The 1st and 2nd appellants pleaded guilty to two charges of robbery and the 3rd appellant to one such charge. All three appellants asked that five similar offences be taken into consideration. Each was sentenced to detention in a training centre.

2. At the date of their conviction, however, each appellant was on probation, the first in connection with what the magistrate described as "five separate perfectly filthy indecent assaults upon little girls", the second in connection with one such assault and the third in respect of five offences of robbery. In respect of the breach of probation, the learned magistrate sentenced each appellant to nine strokes of the cane. They all now appeal against the sentence of detention in a training centre and the 1st and 3rd appellants appeal against the sentence of corporal punishment.

3. In the case of LI Chi-ming and the Queen (Criminal Appeal No. 279 of 1971) it was held that it was wrong to impose a sentence of corporal punishment in conjunction with a sentence of detention in a training centre because a caning under the Corporal Punishment Ordinance is likely to put the offender in an unreceptive frame of mind and it was pointed out that section 4 of the Training Centres Ordinance which provides that detention in a training centre is to be "in lieu of any other sentence" indicates the intention of the Legislature that there should not be a joinder of corporal punishment and detention in a training centre.

4. The effect is unhappily that the breach of probation in this and similar cases must go unpunished. That is perhaps the price which has to be paid if due regard is to be given to the reformative object of detention in a training centre.

5. In the present case, the 2nd appellant has not appealed against the sentence of corporal punishment and he informed me that that sentence has already been carried out. It is perhaps inequitable that the 1st and the 3rd appellants should now escape corporal punishment already inflicted upon the 2nd but as it seems to me I must, as a matter of law, set aside the sentence of corporal punishment in the case of the 1st and 3rd appellants.

6. In regard to the 1st accused, the learned magistrate said that in his view, if ever caning was justified, it was justified for the assaults of which he had been guilty. I entirely agree, and I regret that the law does not permit enforcement in the case of this youth of the sentence of corporal punishment imposed upon him.

7. The appeals of the 1st and 3rd appellants succeed to the extent that the sentence of corporal punishment imposed in each case is set aside. The appeal of the 2nd appellant against his detention in a Training Centre is dismissed.

Representation:

All three appellants in person.

Duckett S.C.C. for Crown.