Ngai Chi-keung v. The Queen

CACC000681/1969

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 681 OF 1969

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Coram: M. Morley-John, J.

Date of Judgment: 13 November 1969

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JUDGMENT

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1. The appellant in this case pleaded guilty before the learned Magistrate to two charges of robbery with aggravation in that together with another person he robbed a man on 5th February 1969 and a woman on 21st July 1969. The modus operandi was the same on each occasion, the appellant grabbed the victims' neck from behind while his accomplice relieved the victim of his or her valuables, and at the time the victim was warned to keep quiet otherwise he or she would be stabbed to death.

2. The learned Magistrate sentenced the appellant to one year's imprisonment on the first charge (the robbery of 21st July 1969) and to one year and six months' imprisonment on the second charge (the robbery of 5th February 1969), the second sentence to be consecutive to that of the first. The appellant has appealed against these sentences on the ground that they are too severe. In support of this ground of appeal the appellant merely said that both his parents were over 60 years of age, that he had several younger brothers and sisters who would have to leave school if he went to prison.

3. I find no merit in what was said by the appellant, however, I do notice that the appellant is 19 years of age and therefore the provisions of section 109A of the Criminal Procedure Ordinance Cap.221 must apply. This section provides as follows :-

"109A (1) No court shall sentence a person of or over sixteen and under twenty-one years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.".

Counsel for the Crown agrees with me that these provisions are mandatory.

4. There is nothing in the learned Magistrate's record of the proceedings nor in his Statement of Findings to indicate that the learned Magistrate considered the provisions of section 109A as he undoubtedly should have done. I therefore caused this appeal to be adjourned in order that I might receive a report from the Commissioner of Prisons as to the appellant's suitability for detention in a Training Centre in accordance with the provisions of the Training Centres Ordinance Cap. 280.

5. I have now received a report from the Commissioner of Prisons to the effect that the appellant is not suitable for detention in a Training Centre because he is a drug dependant. However the After-care Officer in his report to the Commissioner of Prisons gives it as his opinion that detention in a Treatment Centre in accordance with the provisions of the Drug Addiction Treatment Centres Ordinance, Cap.244 would be more appropriate than detention in a Training Centre. As a result of this report the Commissioner of Prisions in his report states that he considers the appellant suitable for detention in a Treatment Centre.

6. Accordingly this appeal is allowed to the extent that the prison sentences of two and a half years are quashed and in substitution therefor I order that the appellant be detained in an Addiction Treatment Centre in accordance with the provisions of the Drug Addiction Treatment Centres Ordinance.

Representation:

Appellant in person.

Boy, D.D.P.P., for Respondent.