Ku Hiu Kong and Another v. The Queen
Read the full judgment text of CACC 522/1974 on BabelCite. This Court of Appeal judgment.
1. Neither of these appellants has previously been in trouble with the law. That is not to say, however, that they can aptly be described as first offenders since each has pleaded guilty to a number of offences.
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CACC000522/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 522 OF 1974 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 13th August, 1974 ----------------- JUDGMENT ----------------- 1. Neither of these appellants has previously been in trouble with the law. That is not to say, however, that they can aptly be described as first offenders since each has pleaded guilty to a number of offences. 2. The two were members of a gang of robbers whose modus operandi was the common one of surrounding a single victim, threatening him, man-handling him if necessary, and robbing him. The two pleaded guilty to two robberies executed in concert, whilst the first appellant pleaded guilty to a third robbery. In addition, the two admitted to a theft from a vehicle in concert, whilst a similar additional offence was admitted by the second appellant. Lastly, the first appellant pleaded guilty to being member of a triad society. 3. In none of the offences was any serious violence used although on one occasion a melon knife was produced by way of intimidation. The first appellant was thought by the learned magistrate to be sixteen years old and the second appellant is seventeen. Had the assumption as to the first appellant's age been correct, I would in any event have considered the sentences totalling, in the case of the first appellant 2 ½ years and in the case of the second appellant two years and three months, heavy having regard to the fact that neither appellant has ever been exposed to any measure of attempted rehabilitation. In fact, however, it is apparent from the probation officer's report that the learned magistrate was under a misapprehension as to the age of the first appellant whose birth certificate, referred to in the Probation Officer's report, reveals him to have been born on 24th November 1958 and thus to have been just about 15 ½ years old at the date of his sentence. Had the learned magistrate appreciated that fact, I think it unlikely that he would have imposed a sentence of 2 ½ years imprisonment. Whilst, under s.15(1) of the Juvenile Offenders Ordinance (Cap. ...(illegible)) there is warrant for sending a "young person" to prison - a young person meaning "a person who is, in the opinion of the court, 14 years of age or upwards and under the age of 16 years" - s.11(2) of that same Ordinance provides that
Instances of 15-year-olds being sent to prison must be rare indeed and I am not satisfied that there was no other method of dealing with this youngster in the light of the fact that no other type of punishment had over been inflicted upon him by the courts so that there exists no yard-stick to measure his response to methods of punishment aimed rather at rehabilitation than at mere imprisonment. 4. Section 19 of the Juvenile Offenders Ordinance provides that an order or judgment of a court shall not be invalidated by any subsequent proof that the age of any person brought before the court ...(illegible) been incorrectly presumed or declared by the court. That section however means no more than that, in such circumstances, there shall be no automatic invalidation. The section is not designed to block any right of appeal or to fetter the ordinary discretion of an appeal court. 5. Similar remarks regarding non-exposure to any previous rehabilitary attempts, must apply to the second appellant who is 17 years old. I would not wish however, to be construed as implying that imprisonment, as a first punitive measure, is never appropriate for offenders between the ages of 15 and 21. Serious violence and rape are instances of types of cases in which imprisonment, even for a youthful first offender, may be appropriate and indeed, only a few days ago, in Criminal Appeal No. 548 of 1974, a Full Court of which I was a member declined to interfere with sentences of five years imprisonment imposed upon 16-year-olds for rape. 6. The present offences, though serious, are not of the most heinous; the offenders are very young and to expose them to lengthy terms of imprisonment without ever having had the chance to profit from sentences designed more specifically for rehabilitation, may well prove, in the long run, to be in the best interests neither of the appellants nor of the community. 7. The learned magistrate obtained reports as to the suitability of these two appellants for detention in either a detention centre or a training centre. Both were found suitable for either type of detention. Whilst the short sharp shock of a detention centre might prove effective, I incline to the view that the longer period of discipline and training involved in a training centre sentence may be more efficacious. The various sentences upon the two appellants are set aside and substituted in each case by an order for detention in a training centre. Representation: Appellants in person. Hanson, C.C., for respondent. |