The Attorney General v. Cheung Chi-man
|
CAAR000012/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) APPLICATION FOR REVIEW NO. 12 OF 1972 -----------------
Coram: Rigby, C.J., Huggins & Leonard, JJ. Date of Judgment: 19th October, 1972. ----------------- DECISION ----------------- Rigby, C.J.: 1. This is an application by the Attorney General to review a sentence imposed by a Magistrate's Court on the ground that the sentence was manifestly inadequate; leave to apply being granted by a single judge. 2. The respondent, aged 18, pleaded guilty to a charge of robbery preferred against him jointly with another person not in custody. The facts of the case were that shortly after midnight on the 1st September, 1972, the respondent and another person approached a courting couple who were sitting on a bench in Victoria Park, in the Causeway Bay area. The respondent pointed a knife at the male victim, whilst the person with him struck the victim on his chest with his fist and demanded money from him. Under this threat, the male victim took $180 out of his pocket and handed it to the respondent's companion and the victim's female companion took $125 out of her handbag and also handed it over to the respondent's companion. Both robbers then ran away. The male victim had the presence of mind to follow them. The robbers boarded a passing taxi and the male victim followed after them in another taxi. Some distance further along the road, the robbers got out of their taxi and so did the male victim. The male victim continued to follow them and whilst so doing saw a policeman, to whom he reported what had happened. The policeman followed after the robbers, who took fright and proceeded to run away. However, the policeman succeeded in catching the present respondent. Those were the brief facts. 3. The respondent has a clear record. The learned magistrate remanded him in custody to a training centre for 14 days pending the production of a probation officer's report and also a report from the Commissioner of Prisons as to whether the respondent was suitable for the purpose of being sent to a detention centre. On the resumed hearing, the probation officer's report was before the magistrate. The contents of that report were generally favourable to the respondent and the probation officer recommended a period of probation. The magistrate, bearing in mind the age of the offender, the fact that he had never been in trouble before and the recommendation by the probation officer, made an order placing the offender on probation for a period of two years. It is against that order that the Attorney General has applied to this court for a review on the ground that the sentence was manifestly inadequate. 4. In different times and under different circumstances, the order made by the magistrate may well have been a perfectly proper one, but we have to bear in mind that offences of this kind committed by young persons are, unfortunately, all too prevalent at the present time. In such circumstances, the public interest necessitates and requires the imposition of sentences which although often inappropriate, having regard to the interests of the offender himself, are nevertheless necessary to deter other potential offenders from committing offences of a similar nature. This was an offence of robbery involving the production of a knife. This court has on previous occasions said that in cases of robbery in which a knife was used or displayed, a custodial sentence should be imposed unless there are exceptional reasons present which would justify some other course being pursued. In our view, there were no such circumstances present in this case to exclude the imposition of a custodial sentence. 5. This matter first came before this court on the 5th October, 1972. We thought it proper that the hearing of the application itself should be adjourned in order that the respondent might be legally represented. At the same time we directed that a report should be obtained from the Commissioner of Prisons as to whether the respondent was suitable for admission to a detention centre. We now have before us a report from the Commissioner of Prisons. In our view this was eminently the type of case for the making of a Detention Centre Order. However, the report from the Commissioner of Prisons states that:
It seems to this court highly regrettable, to say the least of it, that what is considered by the court to be an entirely proper punishment for a young first offender convicted of a robbery involving the display of a knife, to wit, a Detention Centre Order, cannot be carried out because of difficulties of accommodation. The remedy must surely be to remove those difficulties and ensure that accommodation can be made available so that appropriate sentences imposed by the courts can be properly enforced. However, the relevant section provides that a Detention Centre Order against a young offender shall not be made unless:-
6. Apparently the sole reason why a Detention Centre Order cannot be enforced in this case is not because the offender is not considered suitable but simply because of the difficulty in segregation by reason of his age. In such circumstances we have no alternative but to make an order that the respondent be sent to a training centre-the Commissioner having certified that he is mentally and physically fit for admission to such a centre. 7. The application for review must accordingly be allowed, the probation order made by the magistrate set aside and a training centre order, under section 4(1) of the Training Centres Ordinance, substituted therefor. Representation: Sneath, S.G., Q.C. & Harte, C.C. for Applicant. M. Asome (W.K. Lore & Co.) assigned for Respondent. |