La (Lam) Le-hai v. The Queen
|
CACC001138/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 1138 OF 1979 -----------------
----------------- Coram: Silke, J. in Court. Date of Judgment: 4 January 1980 ----------------- JUDGMENT ----------------- 1. The appellant, Lam Le Hai, appeals against an order made at North Kowloon Magistracy detaining him in a Detention Centre. 2. The appellant is a 17 years old, Vietnamese, refugee boy. The convictions which gave rise to the sentence were eight offences of petty theft ranging over a period of June to September 1979. These were committed in the refugee camp in Hong Kong where the boy lived and involved, as the major item, a sewing machine which was recovered: the rest being a radio cassette not recovered, personal clothing and two small sums of money. 3. When apprehended he freely confessed and he pleaded guilty in Court. 4. A mean series of offences committed against people in the same situation as himself. 5. I would hasten to add that nothing I say here is intended in any way as a criticism of the learned trial magistrate. 6. The learned trial magistrate had the benefit of a probation report and a Detention Centre Suitability Report. 7. He was told by a relation of the boy that the family were awaiting permission to go to Canada where the boy's elder brother already resided. 8. He did not, as I do, have the benefit of seeing a letter from the First Secretary (Immigration) of the Commission for Canada - tendered by Miss Leung, who appeared for the appellant on the instruction of the Director of Legal Aid. 9. The boy came here with his elder brother in April 1979. His parents and his elder sister came later and were placed in another refugee camp. This I think to be unfortunate. Families in such tribulation should at least be united. 10. The Probation Officer, with the throughness the courts have come to expect from officers of the Social Welfare Department, paid a visit to the boy's camp and spoke with his fellow refugees. They were most sympathetic towards the boy and thought the major reason for these offences to be the boys: "severe material deprivation and lack of parental attention and supervision". 11. They asked for a chance for him. 12. In his letter the First Secretary made it plain that in view of the boy's conviction he would be prohibited from admission to Canada - further this prohibition in turn would render the member of his family "inadmissible". 13. In the circumstances a very terrible price to pay for these offences, however mean they might be. 14. I would make it plain however that I do not, in ordinary circumstances, think that possible emigration to another country should be a factor in considering whether or not an offender should have a conviction recorded against him. A recipient country is entitled to know that which it is receiving. 15. But here there are most exceptional circumstances: the age of the boy, his general situation and the sufferings any refugee must undergo, the nature of the offences, the prohibition which would affect not only the boy but the whole family and the feelings of his follow camp inmates. These in my view, and without any disrespect to the experienced magistrate concerned, justify a variation of sentence. 16. I intend to quash the Detention Centre order and invoke the provisions of Section 36 of the Magistrates Ordinance. 17. The appellant will be bound over in his own bond of $100 to appear within the space of one year for conviction and sentence if called upon. 18. This order will be made without recording a conviction. 19. The boy has been clearly warned that the future of his family may well depend on his good behaviour. 20. I would conclude by expressing the hope, and I do realise the difficulties as to accommodation experienced by those in charge of Refugee Camps, that it may be possible to reunite this family in one camp during the remainder of their stay in Hong Kong. Order: 21. Appeal allowed in part. 22. Detention order quashed. 23. Section 36 Magistrates Ordinance. 24. The appellant be discharged conditionally on his entering into a recognizance without sureties in the sum of $100 to be of good behaviour and to appear for conviction and sentence when called upon at any time during the period of one year. 25. No conviction to be recorded.
Representation: Miss J. Leong (D.L.A.) for appellant. Mr. Frank Wong for Crown. |