The Queen v. Lau Wai Kwan

CACC000416/1988

BETWEEN

Coram: Hon. Yang, C.J. Silke, v.-p. & penlington J.A.

Date of hearing: 30th December, 1988.

Date of delivery of judgment: 30th December, 1988.

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J U D G M E NT

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Penlington, J.A.:

1. This is an application for leave to appeal against sentence.

2. The applicant pleaded guilty in the District Count to 11 counts of theft, one count of possession of an offensive weapon and one of going equipped for stealing. He asked that 17 other counts of theft be taken into consideration.

3. The facts which were admitted were that on the 27th January 1988, a car having been parked in Tsim Sha Tsui, a witness went back to put more money in the meter and saw the applicant getting out of the car. He had taken a leather jacket and was walking away. When he saw he had been noticed the applicant ran, chased by a passer-by. There were two police constables also in the area who joined in, the applicant was stopped and the leather jacket was recovered. The applicant was searched and an electric "stun gun" was found on him.

4. From the moment he was apprehended, the applicant was cooperative with the police and admitted the offence. He also confessed to the many other similar offences with which he was charged plus the 17 offences which he asked to be taken into consideration As a result of the statements that he made and the information given to the police most of the property stolen was recovered which included some valuable articles including portable telephones and radios which had been taken from cars. Small sums of money and minor personal effects were not recovered.

5. Mr. Mayne, who appears for the applicant, submits that in imposing concurrent sentences of 2 ½ years on the theft charges and a consecutive sentence of 6 months for possession of the stun gun, the District judge had not fully taken into account the pleas of guilty to the charges made by the applicant, that he cooperated fully with the police and the recovery of most of the property. It may well be that but for that cooperation the property which had been recovered would not have been found because it was not in his own home but in another flat. It is also stressed by Mr. Mayne, and quite properly, that his cooperation with the police continued even after the applicant had been charged in the District Court and while he was on bail. He continued to give information regarding the whereabouts of property.

6. It is also clear from the probation report and the report from the Commissioner of Correctional Services which the District Judge obtained that the applicant comes from an unfortunate background in that his parents were divorced when he was very Young. His mother played no part at all in his upbringing and his father who was a seaman in recent years, had also disappeared entirely from the scene. There has only been one relative, a madam Cheung Hon Yang, an aunt, who has apparently done her best to bring up the applicant but quite clearly she has found him difficult.

7. We are quite satisfied that there is no substance in Mr. Mayne's submission that not sufficient regard was  had to the relevant mitigation. The District Judge clearly had fully considered it as he considered the reports which he called for from the Probation Service and the Commissioner of Correctional Services. The Probation Office did not recommend probation but also, did not advise against it. The Commissioner of Correctional Services found the applicant unsuitable for detention in, a Detention Centre for medical reasons but he also recommended against a Training Centre older as the applicant has little family support in Hong Kong. Clearly the District Judge felt in view of that there was no alternative open to him but to impose a sentence of imprisonment.

8. What concerns us in this matter is that this is a case of the young man of 20 who has committed over a relatively short period of time a series of thefts but not crimes involving violence to the person. He has no trade and we are reluctant indeed to follow Mr. Mayne's suggestion that he should be placed on probation and he could then possibly get a job in a restaurant. We feel that his chance of rehabilitation under those circumstances would not be good. We do agree with Mr. Mayne that in a case such as this of a young man with the applicant's background, and considering the offences that have been committed that rehabilitation should be the primary factor. It seems to us that this is a case where the applicant should receive a sentence of detention  training centre. Quite clearly the trial judge however was deterred from following that course because of the commissioner of Correctional Services' recommendation. However there were in fact some relatives in Court and it would seem to be unfortunate if the applicant was denied a sentence which would seem to offer by far the best chance of his rehabilitation.

9. It does seem to us that perhaps the Commissioner has not fully considered the position of Madam Cheung who apparently is prepared to give what support she can and has to a substantial extent acted in loco parentis to the applicant. While it is an unusual course to take and we do so with some reluctance we feel that this is a case where notwithstanding the Commissioner's report the reasons for imposing a training centre order are so strong that we should nevertheless do so despite the non-recommendation.

10. We therefore grant the application for leave to appeal against sentence, quash the sentences of imprisonment and substitute a sentence that the applicant be detained in a Training Centre.

Representation:

Ronald E. Mayne (Poon & Dessanayake) for Applicant

A.A. Bruce, Senior Crown Counsel for Crown