Kwong Wing Keung v. The Queen

CACC000392/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMInAL APPEAL NO. 392 OF 1975

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Coram: Huggins, J.

Date of Judgment: 20th June 1975.

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JUDGMENT

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1. This Appellant was charged before a magistrate with robbery. He pleaded Not guilty and after due trial was convicted. He was sentenced to twelve months' imprisonment. He lodged an appeal against conviction. Upon the hearing of the appeal counsel said that he was instructed to ask for leave to withdraw the appeal against conviction, which was granted, and he said that the magistrate had given an extension of time for an appeal against sentence. Counsel then addressed me on behalf of the Appellant, and I indicated that it might be that the appeal ought to be allowed and some other form of sentence substituted. For that purpose I desired to have further information and asked for reports from the Social Welfare Department and from the Commissioner of Prisons. Having seen the way in which the wind was blowing the Appellant decided that he did not want to proceed with his appeal. He had been sentenced to twelve months' imprisonment and, with remission, he might hope to regain his liberty after eight months. It was obvious that if I sub tituted an order for detention in a training centre it would take him longer to regain his liberty. That apparently being his main consideration he wished to avoid the possibility of longer detention. However, there is no doubt at all that the Legislature considers a sentence of detention in a training centre as of less gravity than a sentence of imprisonment and I thought it improper to allow the appeal to be withdrawn in these circumstances. The Appellant then sought to withdraw his instructions to counsel. That, again, I thought, on the authorities, he was not entitled to do. Once counsel has been instructed he must continue unless there is some impropriety in his continuing.

2. The facts of the case were these. The Appellant approached a labourer of the Urban Services Department in a playground. He demanded money and said that if it was not paid he would push the man into a store-room and beat him up. This unfortunate man, who was carrying on his lawful work on behalf of the community, had only sixty cents on him. Being in fear of this Appellant, who is not a small young man, he paid up the sixty cents.

3. The learned magistrate described the Appellant as a "bully" and said that he showed not the slightest remorse. Objection has been taken to both those statements. With respect, it seems to me they were amply justified and, in particular, the further reports which I now have indicate that the Appellant does not show any remorse. The learned magistrate, not having been faced in the first instance with an appeal against sentence, has not been able to provide any reasons in writing for his sentence. I must assume that he did consider the possibility of some other form of sentence. He was aware that the Appellant had two previous convictions for which he had been sentenced to a detention centre, but he did not think it necessary to obtain any further reports. In the light of the appeal I thought it appropriate, as I have said, to call for further reports and the Probation Officer's report is certainly very helpful.

4. I am fully satisfied that the sentence of twelve months' imprisonment is not one that ought to be upheld. It is true that the Full Court has said that for robbery a custodial sentence is normally appropriate. That does not mean - and I certainly have never said that it means - a sentence of imprisonment. This is a young man of twenty. He has had a difficult life and I do not think the public interest would be served by his continuing to remain in prison. The question is what ought to be done with him. The Commissioner of Prisons advises me that the Appellant is suitable for the training centre. The Probation Officer is prepared, on certain terms, to accept him for probation. Counsel has emphasised that in the present case the difficulties which this young man has had to face include that of sometimes being short of the necessities of life, and the Probation Officer seems to be satisfied that he was on occasions hungry and that his offence may well have been as a result of his wanting to buy food. That, I believe, is happily no longer necessary in Hong Kong since assistance can be obtained when it is essential, but I would not criticise any widow with children who was too proud to accept charity, although, as in this case, it may place great hardship on the children, some of whom may not be of such strong character.

5. I have given this case considerable and anxious consideration and I have come to the conclusion that I ought to accept the suggestion made by the Probation Officer. This is, of course, subject to the agreement of the Appellant. I propose to make a probation order for a term of two years upon the usual conditions but subject to the further condition that for nine months the Appellant reside in the Kwun Tong Probation Hostel.

20th June 1975.

Representation: