Yip Shan Wai v. The Queen

CACC000512/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 512 OF 1968.

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Coram: Morley-John, J. in Court.

Date of Judgment: 17 October 1968

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JUDGMENT

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1. The appellant pleaded guilty to a charge of robbery with aggravation, and the brief facts of the case were that the appellant together with three other boys on 1st July 1968 robbed ten boys who were on a picnic of cash and wrist watches. The appellant received a wrist watch for his part in the robbery. The appellant was sentenced to detention in a training centre in accordance with the provisions of the Training Centres Ordinance, Cap. 280 and he now appeals against that sentence.

2. The grounds set forth in the appellant's notice of appeal are merely that his sentence was too severs. However, Mr. H.C. Ho, solicitor for the appellant, who appeared before me on the appeal put forward two further grounds of appeal. These grounds had not been submitted in writing and as has frequently been said it is the established practice of the court that particulars of the grounds of appeal are required to be lodged with the court and made available to Counsel for the Crown in reasonable time.

The two further grounds of appeal were :

Dealing with the second of the further grounds of appeal first. Where a person is sentenced to detention in a training centre under the provisions of the Training Centres Ordinance, Cap. 280, he is not sentenced to detention for three years, but for such period not extending beyond three years from the date of his sentence as the Commissioner of Prisons may determine; and there is a proviso that the Commissioner of Prisons shall not release such a person before the expiration of nine months from the date of his sentence unless required to do so by direction of the Governor. Thus, this ground of appeal is not a valid ground because the period that the appellant might be detained in the training centre in excess of nine months is entirely at the discretion of the Commissioner of Prisons.

3. As to the first further ground of appeal that a detention order is not an appropriate sentence in this case, Section 4 of the Training Centres Ordinance provides, inter alia, that where the court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct and to the circumstances of the offence, it is expedient for the person's reformation and for the prevention of crime that he should undergo a period of training in a training centre, then the court may, in lieu of any other sentence, pass a sentence of detention in a training centre.

4. In his reasons for sentence the learned Magistrate stated that he considered that the interest of the community outweighed all other factors which ordinarily would have induced him to give the appellant a conditional discharge or put him under the supervision of a Probation Officer, and that in his view due to the prevalence of this type of offence the interest of the community demanded a penalty which would act as a deterrent and that sentence to detention in a training centre was a penalty which could act both as a deterrent and a means of effecting the reform of the appellant.

5. The Commissioner of Prisons, however, in his covering memorandum to his Training Centre Remand Report suggested that this case appeared to be one which might respond to probation, and in the Training Centre Remand Report and After-Care Officer stated that he had discussed the case with the Probation Officer, who also agreed that the case might be a suitable one for probation, taking into consideration the facts that the appellant was a first offender, that his family report was in his favour and, that the Probation Officer agreed to take up the case, and that the appellant showed a sense of regret. The After-Care Officer concluded his Report by suggesting that the court give the appellant one last chance and give him the opportunity of continuing his studies. Mr. Ho in addressing me, stressed that the appellant was at a good school, that he had obtained a scholarship there in his third year and that the school was anxious to take him back. Also, that the education the appellant would receive at a training centre would not be up to the standard that he would receive if he was allowed to return to school and that if a Probation Order was made the Roman Catholic Fathers who were in charge of the school would co-operate to see that the appellant kept out of trouble in the future. He also said that the appellant had learned his lesson as he had been in custody for three months which had proved a very sufficient deterrent.

6. I agree with the learned Magistrate that this type of robbery is prevalent in the Colony. Also, I consider that the offence committed by the appellant was a serious one, although from the record he did not appear to be the ring-leader of this gang. However, under all the circumstances, I consider that it would be more expedient for the appellant's reformation that he should continue his studies at his present school. He has, I hope, learned his lesson and I therefore have decided to give him one last chance and place him on probation for a period of two years. The appeal therefore is allowed to the extent that I substitute a Probation Order for the sentence of detention in a training centre.

Representation:

H. C. Ho for Appellant

Addison, S. C. C. for Respondent

Oral judgment reduced into writing.