HKSAR v. Lam Tsz Fung

HCMA1196/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1196 OF 2007

(ON APPEAL FROM STCC 6967/2007)

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BETWEEN

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 30 January 2008

Date of Judgment : 30 January 2008

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J U D G M E N T

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1.This is an appeal against a sentence of Training Centre imposed upon two charges following pleas of guilty to criminal intimidation and indecent assault.  The appellant is 16 years old; he had no previous conviction.    

2.The facts giving rise to the convictions were grave.  The victim was an 11-year-old boy who was a stranger to the appellant.  They met in a lift in a residential building of a housing estate.  The appellant grabbed the victim from behind and used a ballpoint pen to point at his neck.  He abducted him from the lift and took him to a staircase and, at the staircase, subjected the 11-year-old to some pretty persistent sexual abuse involving mutual oral sex. 

3.The magistrate had a full range of reports and he had to balance, as I have to balance, two competing considerations - one, a rehabilitative consideration in respect of the appellant himself, but the other, plain punishment for such grave conduct.  The appellant is not suitable for Detention Centre due to his size.  The realistic choice is between probation and Training Centre. 

4.He was assessed to be suitable for a probation order but, of course, the probation officer's primary focus is whether or not the character of the person he is assessing would be suitable for such a disposal.  It is not the probation officer's job but the court's job to balance the gravity of the crime and judge what sentence must be passed in light of that.  Both sentences have a rehabilitative element but, of course, the Training Centre also has a punitive one.  The magistrate was of the view that the case was too serious to do without that punitive element, and I am bound to say I agree and, accordingly, the appeal is dismissed. 

Mr David Leung, Senior Assistant Director of Public Prosecutions (Ag.), of the Department of Justice, for HKSAR

Mr Francis M B Cheng, instructed by Cham & Co., for the Appellant