Keung Kwong Fuk v. The Queen

CACC000474/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 474 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 10th August, 1972.

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JUDGMENT

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1. The appellant pleaded guilty to 2 charges preferred against him - one of criminal intimidation and one of being a member of a triad society.

2. At the time he committed these offences he was just under 17 years of age. It would appear that the appellant became a member of the Wo Shing Wo Triad Society some time in 1971. There is no suggestion or evidence - subject to what I am about to say in relation to the 2nd charge - that he was an active member of that Society. On the 4th of April, he and other youths who were also - presumably - members of the same Society threatened another youth who had apparently for some time past dissociated himself from membership with the Society; and they threatened him and sought to compel him to continue his membership with that same Triad Society.

3. These facts only came to light after the appellant had been arrested and after he had apparently quite frankly admitted his membership of the Triad Society.

4. The learned magistrate adjourned the case in order to have before him the Probation Officer's report and a report as to whether or not the appellant was suitable to be sent to a training centre. On the resumed hearing, the magistrate had before him the report from the Commissioner of Prisons as to the suitability or otherwise of the appellant being sent to a training centre. The Commissioner expressed the view in the certificate produced that the appellant was both mentally and physically suitable for admission to a training centre. However, in that same report the Commissioner also said that he had considered a report of his after-care officer and also a report on the home circumstances and history of the appellant and he expressed the view that - subject always to the decision of the Court - the appellant might respond to probation as an alternative course to being sent to a treatment centre.

5. The report of the Commissioner of Prisons in these matters is, of course, always helpful. It would, however, have been perhaps more helpful if he had attached to his certificate the report of his after-care officer upon which he based his views.

6. The magistrate also had before him the report of the Probation Officer. It would appear that the appellant had been in employment as a plumber until very shortly before this offence was committed. Apparently he admitted quite frankly to the Probation Officer his guilt or implication in these 2 offences. The appellant, according to the Probation Officer's Report, has a girl-friend who was at that time pregnant by him. The Probation Officer described it as a borderline case for probation supervision. To that extent, his report supported that of the Commissioner of Prisons.

7. The learned magistrate took the view - perfectly properly - that this was a serious type of case and he mentions in his Statement of Finding that in the conditions at present obtaining in Hong Kong the pressures to which youths who are inclined to be law-abiding are subjected by those who are not so inclined can well be imagined. That is a cogent observation. However, Mr. Bernacchi who has appeared for the appellant in this matter informs me that the appellant is now in employment with a firm manufacturing cutlery and tableware and that he is earning approximately $500 a month; that he is supporting his girl-friend and their baby and living with his parents to whom he is making a contribution out of his earnings.

8. In all the circumstances of this case, while I would hesitate to say that the order made by the magistrate is in any way an inappropriate order, I am satisfied that this is a case in which it is worth taking a risk and that the appellant may well have learned the error of his ways and may respond to probation. It is to be said that he was a first offender at the time he committed these offences and has never been in trouble before. The appeal against sentence will accordingly be allowed ...(illegible) a training centre is set aside and in lieu thereof, under Section 3 of the Probation of Offenders Ordinance, Cap. 298, the appellant will be placed on probation for a period of 12 months.

9. The appeal against conviction is dismissed.

Representation:

Appellant in person.

Sherwood, C.C. for Crown/Respondent.

(Judgment delivered)