Chung Wai-tong v. The Queen

CACC000527/1977

IN THE SUPREME COURT OF HONG KONG

( Appellate Jurisdiction )

CRIMINAL APPEAL NO. 527 OF 1977

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Coram. Zimmern,J. in Court

Date of Judgment: 13th June, 1977.

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JUDGMENT

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1. The appellant 16 years of age was arrested in the early hours of the morning on 2.5.77. He was charged with loitering in Fleming Road and unable to give a satisfactory account of himself. He pleaded guilty at Causeway Bay Magistrate's Court the next day and was remanded in jail custody till 16.5.77 for Detention Centre, Training Centre and Probation Reports.

2. He was further remanded on 16.5.77 and on 18/5/77 was sentenced to the Training Centre.

3. The appellant appealed against sentence and first appeared before me on 6/6/77, when I had had the benefit of reviewing his criminal record form and the Reports on him. The only entry on his record form was for the offence of Membership of a Triad Society on 27.10.76. He was discharged and bound over in the sum of $500 for 3 years and police supervision for 2 years. On 16.5.77 the Commissioner of Prisons wrote to the learned magistrate to say that the appellant was mentally and physically fit for detention in a Training Centre but the "by virtue of section 4(3) of the Detention Centre Ordinance, having been sentenced to a term of imprisonment was inlegible to be considered for detention in a Detention Centre." The learned magistrate accepted this as a fact in his statement of findings, but there was no term of imprisonment on the appellant's record form. The appellant himself supplied a possible answer to this riddle but whether it is the correct answer I have doubts. He said before me and said cogently with the tone of one aggreived that after his plea of guilt and when in jail custody he was informed on 12/5/77 that he would be charged with 2 additional charges and on 14/5/77 was sentenced to 3 weeks' imprisonment which he had completed serving. Why was he sentenced again to the Training Centre? Mr. Adams for the Crown knew nothing about the prison sentence so I adjourned the case till 13/6/77. At the resumed hearing Mr. Adams confirmed substantially the appellant's version that he had indeed been brought before a magistrate on 14/5/77 for 2 separate breaches of his bond and sentence to a week and 2 weeks imprisonment consecutively. He was therefore serving the fourth day of his term when he was brought before the learned magistrate on 18/5/77 for sentence on the loitering charge when the magistrate again took into consideration his beeach of bond. The appellant had pleaded guilty on 3/5/77 and sentence then deferred till 16/5/77. Was it really necessary to charge him before another magistrate on 14/5/77 for breaches of bond? If this matter had been left to the learned magistrate on 16/2/77 and eventually 18/5/77 there would not have been such a mix-up about the prison sentence. I say a mix-up because first the Commissioner was wrong in stating in his memo of 16.5.77 the effect of section 4(3) of the Detention Centres Ordinance. The learned magistrate obviously was not misled by this error for he stated in his statement of findings and I quote "although only 16 the appellant, having earlier served a period of imprisonment, was ineligible for Detention Centre by virtue of section 4(3) Detention Centres Ordinance". The magistrate was never informed as he ought to have been that the appellant was merely then serving a term of imprisonment of 3 weeks. Further I feel this term would not have been imposed had the facts been brought to light.

4. I cannot agree that the appellant has such a bad record that he should be sentenced to a Training Centre. One of the statutory reasons for that sentence is that it is expedient for the prevention of crime that the defendant should undergo a period of training in a training centre - and that period could be 3 years (see section 4 Training Centres Ordinance). What crimes has this Appellant committed? First, he joined a triad society apparently, on the papers and records before me, at the ripe old age of 12 ½. Second, he broke a bond to be on good behaviour under police supervision and third, he loitered. There is not the slightest suggestion that the appellant has in any way committed a trespass to goods, property or to any person. For the above reasons I allowed the appeal, set the sentence aside and substituted therefor by a sentence of a term of imprisonment which would allow him to be discharged forthwith.

Representation:

Appellant in person.

Adaws for Crown.