Chau Ho Wan v. R.

CACC000389/1993

IN THE COURT OF APPEAL

1993, No. 389
(Criminal)

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Coram: Hon. Macdougall, V-P, Wong and Ryan, JJ.

Date of hearing: 13 January 1994

Date of delivery of judgment: 13 January 1994

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JUDGMENT OF THE COURT

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1. The applicant, who was D1 during the trial in the District Court of 5 defendants, pleaded guilty before Miss Betty Kwan, sitting as a Deputy Judge to a charge of lending money at excessive rate contrary to section 24(1) of the Money Lenders Ordinance, Cap. 163. The interest charged in this case was nearly 800% per annum, and the applicant was a member of a loan shark syndicate in Ap Li Chau Housing Estate.

2. The judge called for reports before sentencing as she was obliged so to do under section 109A of the Criminal Procedure Ordinance. After considering the reports, the judge sentenced the applicant to detention in a training centre. One of the applicant's co-accused received a total sentence of 18 months' imprisonment for two money lending offences, and a second co-accused received a sentence of 8 months' imprisonment. Both were ineligible for Training Centre. In a very careful reason for sentence, the judge was satisfied that the applicant was in need of help and guidance which the family was unable to provide. The applicant was 17 at the time of the offence and 19 when he was before the court.

3. Not only was the rate of interest grossly excessive but the syndicate used intimidation and threats of damage to the homes of the debtors when they failed to make payment on schedule. However, there was no evidence that the applicant had been involved in the making of threats or engaging in intimidation. It was no doubt for this reason that his more culpable co-defendants were sentenced to terms of imprisonment and he was made the subject of a Training Centre order.

4. It was argued before us by Mr. de Boinville that the effect of the Training Centre order is that the applicant will be denied his liberty for a longer period than his more culpable co-defendants and that the sentence of training centre in this case is wrong in principle and should not have been made. We do not agree.

5. The training centre is specially designed for young offenders who have attained the age of 14 years and have not attained the age of 21 years. The object of an order committing such an offender to a Training Centre is training and reformation. The length of the detention is between 6 months and 3 years. The date of release depends on the assessment by the Commissioner of Correctional Services of the behaviour and performance of the detainee.

6. The cases which were cited before us were brought to the attention of the judge, who had considered them and had properly come to the conclusion that each case must depend on its individual circumstances. At p. 6 of the appeal bundle, the judge approached the issue in a manner that cannot be faulted. She took into account that the applicant was a young man of 19 with a clear record. In (d) of paragraph 5 of the Reasons for Sentence, she said :

"As the Defendant was only just turned 19, there was no question about the guiding principle to be applied. It was said in Smith [1964] Criminal Law Report 70. 'In the case of a young offender ..... the public have no greater interest than that he should become a good citizen. The difficult task of the Court is to determine what treatment gives the best chance of realising that objective.' "

The training centre order will no doubt benefit the applicant as much as it will benefit society.

7. In our judgment, the making of a training centre order was entirely reasonable and proper in the circumstances of this case and was the best and most effective way of dealing with the applicant. Everything in favour of the applicant had been taken into account by the judge. We can see no reason to interfere with the sentence and leave to appeal is therefore refused.

Representation:

Mr. Bernie Ryan for Crown Prosecutor

Mr. Nigel de Boinville (D.L.A.) for Applicant