Lai Yuen Cheung v. The Queen

CACC000529/1981

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Coram: LIU, J. in Court

Date of Judgment: 3rd July, 1981.

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JUDGMENT

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1. About noon on the 8th March 1981, the appellant and his friends were not making proper use of the tennis training facilities at the Sun Luen School playground, Por Law Cher, Sai Kung. The Recreation Assistant in charge was summoned, and thereupon the appellant's party were asked to remove themselves. The appellant took exception to the stern warning repeatedly given by the Recreation Assistant and rushed at him with several fist blows. The Recreation Assistant was certified to have suffered no injury in an examination at the United Christian Hospital. A report was however made to the police.

2. In the morning on 31st March 1981, the appellant surrendered himself to the authority. Upon caution, the appellant made a clean breast of his misdeed and admitted his loss of self-control.

3. The appellant had been convicted of robbery and was sent to a Detention Centre in March 1979. The appellant was 18 at the time of the assault.

4. For his present offence, the appellant was charged, pleaded guilty and was sentenced to be detained in a Training Centre.

5. Reports from a Probation Officer and an Intake Officer had been obtained. There was admittedly no premeditation as the Recreation Assistant was attacked in a fit of anger. After his last conviction for robbery, the appellant had recently taken up paint-scraping work with the intent of keeping himself from bad habits. The general impression formed by officers from all quarters, including the employer of the appellant was encouraging. The Probation Officer was of the firm opinion that probation should be attempted with the joint effort of the parents of the appellant. The Intake Officer reported that the appellant's parents retained keen interest in their son, and he concluded: "Considering the case as a whole, I formed the opinion that it would be beneficial to him to undergo a programme of rehabilitation."

6. The nature of the offence, the circumstances in which it was committed and the general view of all concerned were in favour of probation. When the appellant appeared for sentence before the learned magistrate, the following was recorded:

7. In his Statement of Findings, the learned magistrate elaborated:

"On these reports I would have considered putting Defendant on Probation. However after discussing the reports with him and pointing out to him the undesirability of such conduct particularly after his previous Defendant's manner was so aggressive and uncaring that ultimately I was convinced that a disciplinary period was called for and ordered him to be detained in a Training Centre." (The emphasis is mine.)

8. The learned magistrate brought into focus recent cases, in which similar sentences had been interfered with on appeal with the substitution of a suspended sentence. He adverted to the fact that for an offender under 21 "all other sentencing alternatives must be specifically found to be inadequate or inappropriate under Section 109A of the Criminal Procedure Ordinance, Cap. 221 before a sentence of imprisonment can be imposed". The learned magistrate summed up: "Thus I should not imprison Defendant unless the case is too bad for a Training Centre order. Nor is the position different if the imprisonment is suspended."

9. Sentencing is such an inexact science. Guidance on the matter highlighted by the learned magistrate may be found in some of Mr. D.A. Thomas' observations in his Principles of Sentencing, 2nd Edition.

10. It is elementary that a sentence imposed must be appropriate to the offence. If the nature of the misconduct warrants a prison sentence, the Court will turn next to determine its term as guided by the gravity of the crime and the mitigating circumstances, if any. Only ultimately would the Court pass on to consider if there is sufficient justification for suspending the sentence to be imposed. It is axiomatic therefore that at the inception the sentencer must address himself to these preliminaries of an appropriate sentence and its proper term without regard to his power to suspend. If the nature of an offence does not call for a custodial sentence, it would be wrong in principle to pass a suspended sentence, in lieu of an individualised measure such as probation, merely for the purpose of reflecting judicial tolerance of a lesser degree of criminal culpability. Conversely, it would be incorrect to regard a suspended sentence as a half-way house between probation and an immediate custodial sentence. In the case of a young adult offender under 21, the situation has been rendered more intricate. The anxiety voiced by the learned magistrate coincides with the difficulties succinctly presented by Mr.D.A. Thomas at p.p. 224 & 225 of his Principles of Sentencing, 2nd edition:

"The correct approach to the use of the power to suspend a sentence, as has been illustrated, requires the sentencer to consider and reject the use of individual measures such as probation before concluding that imprisonment is the appropriate sentence. The proper length of a sentence must then be determined, having regard to the gravity of the offence and the mitigation. When this process has been completed, the sentencer may turn his attention to the question of suspension. The difficulty that arises at this point is that the first two stages have been followed correctly, all factors which are relevant to the sentence should have been taken into account already. The sentencer must either give double weight to some factors for which he has previously made allowance in calculating the length of the sentence, or search for some new factors which will justify suspension although they are not relevant to the other issues which the sentencer has already considered. The process is not made easier by the existence of statutes prohibiting the imposition of imprisonment on certain categories of offenders unless 'no other means of dealing with him is appropriate'."⁽¹⁾

11. At p.246, the cases of "Murdoch" and "Glenister" were cited for the proposition that even a prison sentence may be suspended in the case of an offender with a record where he "has succeeded in avoiding conflict with the law over a recent period of time". Mr. Thomas continued at p.247:

"Apart from these categories of cases, the suspended sentence may be used where unusual circumstances justify a departure from the normal sentence. The Court does not appear to favour the use of a suspended sentence as part of a progression from probation towards immediate imprisonment, and has warned against the dangers of allowing multiple combination of suspended sentences and individualised measures to mount up against an indiviualised offender, which may result in his facing a long sentence of imprisonment if the various sentences are eventually enforced."

12. The appellant had managed to steer clear of trouble for over a year after his discharge from a Detention Centre. He was only 16 in his 1979 robbery. He was able to maintain himself and had recently selected a different employment which would hopefully lead him further away from his past. This offence was committed in a recreational centre and without premeditation. In these circumstances, I would be prepared to consider, in any event, substituting the order for detention in a Training Centre by a probation order. There would be no question of any suspended sentence in the instant case. However, this appeal falls to be decided on one short point.

13. Probation was enthusiastically urged. There was no revelation in the transcript as to why detention in a Training Centre was to be preferred. The explanation was, however, given in the Statement of Findings. The learned magistrate relied heavily on the aggressive and uncaring attitude of the appellant.

14. Under section 3(1) of the Probation of Offenders Ordinance, regard must be had to the circumstances, including the nature of the offence and the character of the offender, but it cannot be assumed that the learned magistrate was substituting his brief observation in Court for the considered opinions of the appellant's character so favourably given by as well the Probation Officer as the Intake Officer. Their inquiries led to a recommendation for probation.

15. Section 3(4) of the same Ordinance requires that an offender's willingness to accept probation must be clearly expressed. The appellant was aggressive and uncaring, but no step seemed to have been taken for ascertaining if he would consent to abide by the incidents of probation. It was not very clear whether the appellant's consent was sought and if sought, whether it was not given and if given, whether it was not genuine.

16. It is trite law that conduct, however discourteous or improper, of an offender at the trial should best be overlooked by the Court in his capacity of a sentencer. Vide p.51 Thomas on Principles of Sentencing, 2nd Edition.

17. Before this Court, the appellant was submissive and sensible, though he displayed none of these qualities before the learned magistrate. He was made aware of and readily prepared to take the consequences of any failure to comply with what would be demanded of him in probation and of his commission of another offence during probation. The appellant has, in some measure, purged himself of the disrespect which had put him in jeopardy. In the circumstances, justice may best be served by substituting probation for 18 months for his Training Centre Order, and his appeal against sentence is accordingly allowed to that extent.

Representation:

Mr. Lai Yuen Cheung, Appellant in person.

Mr. Hagon, Counsel for Respondent.

(1) See also p.p. 240 and 241 of the same publication.