HKSAR v. Chan Chi Kin

HCMA945/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.945 OF 2004

(ON APPEAL FROM KCCC 700102 OF 2004)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 17 December 2004

Date of Judgment : 17 December 2004

Date of Reasons for Judgment : 30 December 2004

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REASONS  FOR  JUDGMENT

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1.The appellant pleaded guilty to a charge of theft before Mr Denis Lau sitting at Kowloon City Magistrates’ Courts on 8 July 2004.  On 29 July 2004, he was sent to a training centre.  He now appeals against the sentence.

2.The particulars of the charge are that he, in the Wellcome Supermarket in Sham Shui Po, stole one box of fresh soya milk valued at $4.90.  Before sentencing the appellant, the learned magistrate called for reports from the Young Offender Assessment Panel, the Probation Officer under whose care the appellant had been since 12 February 2003, the Commissioner of Correctional Services as regards the appellant’s suitability for detention in a detention centre, rehabilitation centre and training centre.

3.The Young Offender Assessment Panel was of the view that a training centre programme was the best option for the appellant.  The Probation Officer was of the view that probation supervision would no longer be considered an effective means to help the appellant and therefore was not recommended.

4.The appellant was found to be unsuitable for detention in a detention centre because of a deformity of his right tibia due to an old fracture.  The appellant was found by the Commissioner of Correctional Services to be mentally and physically fit for detention in a rehabilitation centre or a training centre.

5.The appellant has two previous similar convictions, one in February 2003 when for theft and assault occasioning actual bodily harm, he was placed on probation for 18 months.  He committed another theft offence and was convicted in July 2003 when he was again placed on probation for 24 months.

6.Prior to the first conviction, the appellant received a Superintendent’s Warning in respect of two offences of theft, one in April 2001 and another in March 2002.  Because of these four infractions against the law, the magistrate was of the view that the appellant was a persistent offender and therefore should receive a sentence which was heavier than he would have had for one offence of theft.  The magistrate was also of the view that a training centre order was the best option for the rehabilitation of the appellant.

7.The appellant will be 15 years of age on 21 December and up-to-date has been detained in the Training Centre for almost five months.  When he was detained for this offence, he was attending Form 1 in a school called Chak Yan Centre.  Enquiries made of the school by those instructing Mr Wong, counsel for the appellant, have revealed that the school would be prepared to accept the appellant back into the school if he were released from detention.

8.Mr Wong quoted to me the following cases : R. v. Chan Pak Lok [1991] 1 HKLR 602, where a man aged 39 who had four previous similar convictions for theft was sentenced to six months’ imprisonment.  Hooper J was of the view that six months’ imprisonment was too severe in the circumstances in view of the guilty plea and the low value of the item stolen, and reduced the sentence to four months’ imprisonment.  In HKSAR v. Ng Kin Nam, HCMA340/2001, where for a plea of guilty to one charge of theft, the appellant was sentenced to eight months’ imprisonment.  Gall J reduced the sentence to one of six months’ imprisonment.  In HKSAR v. Leung Ka Long, HCMA250/2001, where for one offence of theft, the appellant was sentenced to eight months’ imprisonment and, on appeal, that was reduced to six months’ imprisonment.

9.The point that Mr Wong made in relying on these cases is that a training centre order means detention in a training centre for a minimum of six months and a maximum of three years, but in practice, on average, inmates spend 18 months in detention.  Mr Wong, therefore, submits that a sentence which entails detention for as long as 18 months is manifestly excessive for an offence of the nature of the present one.

10.He also quoted the case of Wong Chun Cheong v. HKSAR, [2000] 3 HKLRD 840 where the Court of Final Appeal considered the provisions of the Training Centres Ordinance.  In that case, the Court of Final Appeal considered, inter alia, the case of R. v. Ng Kwai Shing, HCMA828/1992, where Leong J (as he then was) set aside the Training Centre Order and substituted a fine of $3,000 for the offence of possession of infringing copies of CDs for the purpose of trade and said :

“… the sentence ‘should be commensurate with the offence and an offender is not to be sentenced for his past convictions.’”

Ribeiro PJ considered the provisions of section 4(1) of the Training Centres Ordinance, Cap.280 and then said :

“…  This provision has four parts.  First, it lays down two threshold conditions to be met before any thought can be given to making a training centre order: (i) that the relevant offence must be one punishable with imprisonment, and (ii) that the offender is aged between 14 and 21.

Secondly, it requires the court to be satisfied as to two broad questions: (i) that such detention ‘is in the interest of the community’, and (ii) that such detention would be expedient for the offender’s reformation and for the prevention of crime.

Thirdly, it enjoins the court to answer the second of the two broad questions just mentioned by having regard to three matters: (i) the offender’s character; (ii) his previous conduct, and (iii) the circumstances of the offence.

Fourthly, it makes it plain that a training centre order can be made ‘in lieu of any other sentence’.”

This was said by the learned judge at page 848.  At page 850, the judge said :

“… However, what this part of section 4(1) makes clear is that the court cannot make the order without having also considered the circumstances of the offence.

The words used are ‘the circumstances of the offence’.  It follows that the court must consider the specific facts and hence the nature and gravity of the offence with a view to assessing the appropriateness of a training centre order.  It cannot merely use the fact of a conviction, however trivial, as the opportunity or justification for a general review of the offender’s character and previous conduct for the purpose of deciding whether he needs reformation by detention in a training centre.”

11.I take into account the circumstances of the offence that the appellant was convicted of.  It was, after all, a theft of an article which was worth only $4.90.  The appellant had committed the offence by himself and clearly without any premeditation or planning.  Having regard to the period of detention which the appellant has had since 29 July 2004, and having regard to the fact that he is only 15 years old and will be reaccepted back to the school that he previously attended, I allow the appeal and set aside the Training Centre Order and in its place I order that the appellant be bound over in the sum of $2,000 to be of good behaviour and to appear for sentence when called on at any time during the next three years.  He was warned by me that if he should commit any another offence during the next three years, he will forfeit the $2,000 and be sentenced afresh for the present offence in addition to the new offence.  This Order will, hopefully, have the effect of ensuring that at least for the next three years, the appellant stays on the straight and narrow.

Ms Olivia Tsang, GC of the Department of Justice, for HKSAR

Mr Richard Wong, assigned by Director of Legal Aid, for the Appellant