Lau Chun-sing v. The Queen

CACC001083/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1083 OF 1981

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Coram: Addison, J. in Court

Date of Judgment: 17th December, 1981

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JUDGMENT

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1. This is an appeal against sentence by a young boy who at the time of committing robbery was but 13 years of age. He is that same age today. He, together with another boy aged 13 years, stopped two youngsters as they were returning to their Resettlement Estate and demanded money from them. Each put an arm around one boy but the demand was a joint one. One of the boys, aged 9, handed over $5 to this appellant who later shared the money with his confederate. They were charged with robbery and each admitted their involvement. The learned magistrate who heard this case received a probation report on the appellant which was cast in most unfavourable terms. He made an order committing the boy to Castle Peak Boys' Home. That Home is a reformatory school and any boy sent there is required by law to stay there for a period of not less than one year and not more than five or until he reaches the age of 18. The learned magistrate made that order thinking that it was in the best interest of the appellant. The Probation Officer's report showed that he comes from a broken home but was living with his father and with his grandmother. His father is a taxi-driver who works from about 3 p.m. each day until midnight. He has done his best for the child. Likewise the grandmother, who, I am told, has been in constant touch with the appellant's mother throughout the nine years that she has been separated from the appellant's father. The Probation Officer's report stated that this boy was disrespectful to his seniors, stubborn and disliked school. He had on several occasions absconded from school staying at home or playing wild games in the street. The learned magistrate thought that in the circumstances it would be in the child's interest if he were sent to a reformatory school notwithstanding his tender years and the fact that he had no previous convictions.

2. The offence was one which mischievous boys do from time to time and for the appellant to find himself deprived of all care and sent away to reform school until he reaches the age of 18 is too horrific to imagine, especially where that is his only transgression against the law. If this boy was in need of care and control then in my opinion it should have been for the Director of Social Services to make application for an order and not for the criminal court to deprive him of his liberty thinking such to be the best for him and in his own interest. I am not saying that I am unmindful of the anxiety which I am sure the learned magistrate felt in making the order she did. Most happily this case has a fortunate end because the boy's mother has informed this court that she with her new husband are prepared to take him back again under her wing. She has agreed to enter into a bond whereby she will secure the good behaviour and proper education of the child for the next twelve months. The boy's father and grandmother have given evidence before me. They agree to that course but they wish to see the child at regular intervals. It was made abundantly clear both to the father and grand-mother that it was not necessary for them to agree that the child should go and live with the mother as the condition precedent to this court setting aside the order that the child be sent to a reformatory school. They understand that fact. This appeal against sentence is therefore allowed. The order committing the appellant to Castle Peak Boys Home is quashed. No conviction will be recorded against the appellant and under Section 96 of the Magistrate's Ordinance the mother is required to enter into a bond in the sum of $200 to secure the good behaviour and proper education of the child for the next twelve months.

Representation:

Mr. McMahon for Crown.

Miss Rose YEUNG (Peter Kimpton Wong & Co.) for appellant.