Cheung Man-kwong v. The Queen

CACC000391/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 391 OF 1970

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Coram: Rigby, CJ

Date of Judgment: 17 August 1970

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JUDGMENT

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1. The appellant, who is aged 16 1/2, pleaded guilty to the charge preferred against him, together with another youth, of simple larceny.

2. The brief facts of the case were that both these youths went into a shop where watches were being sold and asked to look at two watches. Having seen the watches, they grabbed hold of them, one each taking a watch, and ran out of the shop going in different directions. The shop owner chased the appellant and caught him. The learned magistrate made an order directing that the appellant be sent to a training centre for the minimum statutory period of not less than 9 months and not more than three years.

3. In the circumstances of this case, I am wholly satisfied that that was an entirely wrong order and should not have been made.

4. When the case came before the learned magistrate, very properly he adjourned it in order that he might obtain a report from the probation officer as to the character and background of the appellant, and also in order that he might obtain a report from the prison authorities as to whether the appellant was suitable for detention in a training centre. The probation officer's report is one which is extremely favourable to the appellant. Furthermore, the report of the officer who investigated the case on the part of the training centre authorities, whilst intimating that the appellant was in fact physically and mentally suitable for detention in a training centre, went on to say that he had interviewed the youth, that he had never been in trouble before and that he expressed remorse for what he had done; and, in the opinion of the officer who made that report, this was a case in which the learned magistrate, in the exercise of his discretion, might properly think that this was a case which might respond to probation.

5. It is clear that the appellant was in permanent imployment at the time when this offence was committed. Although living away from his father, his mother having separated from the father, it would appear that he made a substantial contribution from his earnings towards the upkeep and maintenance of the younger children of the family. His employer also gave him a good recommendation and said that he was a good worker. I repeat, he had never been in trouble before. I find myself wholly at a loss to understand why the learned magistrate thought fit to make a detention order in this case.

6. I have no hesitation whatsoever in allowing this appeal and in setting aside the order. I ought, perhaps, to add that consequent upon the magistrate's order the appellant has been detained at a detention centre for just under two months. In the circumstances of this case a conviction will be recorded against the appellant, but under section 36 of the Magistrates Ordinance he will be unconditionally discharged.