HKSAR v. Lai Ho Kit

[English Translation – 英譯本]
HCMA 35/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 35 OF 2009

(ON APPEAL FROM ESCC NOS. 700069 & 700070 OF 2008)

__________________

__________________

Before: Hon Barnes J in Court

Date of Hearing: 24 April 2009

Date of Judgment: 24 April 2009

REASONS  FOR  JUDGMENT

1.The appellant was convicted on his own plea before the magistrate on one count of ‘criminal damage’, contrary to section 60(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong and one count of ‘assaulting a police officer in the due execution of his duty’, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong.  He was sentenced to detention in a training centre and ordered to pay the police officer $3,000 as compensation.  He now appeals against sentence.

Admitted facts

ESCC 70069/2008

2.The facts showed that in the early hours of 24 May 2008, the appellant and his younger brother approached a light goods vehicle parked on the roadside.  They walked around the vehicle twice and then kicked the offside door of the vehicle hard with their right legs.  A police officer who happened to be on duty nearby witnessed the two men’s misdeed and arrested them.  The owner of the vehicle subsequently confirmed that the vehicle sustained the following damage:

(1) a new scratch mark of 1 m long and numerous new scratch marks, each of approximately 50 cm long, on the front of the vehicle;

(2) two new scratch marks of 1 m long and 2 m long respectively on the offside body of the vehicle;

(3) a new dent on the offside body of the vehicle; and

(4) a new scratch mark of 1 m long on the nearside body of the vehicle.

The vehicle owner confirmed that the repair cost was $16,000.

3.The appellant was granted bail after arrest.

ESCC 70070/2008

4.On 28 June 2008, a plainclothes police officer was patrolling Wah Fu Estate.  He saw the appellant acting suspiciously and hence revealed his identity to the appellant so as to make inquiries.  The appellant, however, fled immediately.  The police officer shouted ‘Police, stop’ and gave chase, but the appellant kept running.  The police officer managed to grab the appellant for a few times but was pushed away by the appellant.  The two men also fell onto the ground together in the course of the chase.  At that time, the appellant was already on the police ‘wanted list’ because he had failed to answer bail for the abovementioned criminal damage case.  The police officer became aware of the appellant’s identity and subsequently arrested him in Aberdeen.  As a result of the chase, the police officer sustained injuries, namely, abrasions over his nose, right knee, right thumb and left elbow.

Reasons for sentence

5.The magistrate set out the reasons for sentence as follows:

3.  The defendant does not have any previous conviction for an offence involving violence, and I have noted what he said in mitigation.  However, the two cases now before me are both very serious.  It was an abhorrent crime to damage another person’s vehicle for no reason, and the defendant made his crime doubly grave by assaulting a police officer while on bail.  The Court of Appeal has repeatedly pointed out that the offence of assaulting a police officer warrants an immediate custodial sentence.  In the circumstances of the present case, there can be no appropriate sentencing option apart from a custodial sentence.  As the defendant had been detained in a rehabilitation centre by reason of breaching a probation order, at the previous hearing I called for a rehabilitation centre, detention centre and training centre report.  The defendant has persistently transgressed the law, committed serious offences and refused to mend his ways.  He has said that his health problems would render him unfit for detention in a detention centre, and detention in a rehabilitation centre would not be of much help to him.  Therefore, detention in a training centre has been recommended on the basis that a relatively long period of training would be beneficial to him.

6.The magistrate apparently accepted the recommendation and imposed a training centre order on the appellant.

Ground of appeal

7.Mr Poon, Counsel for the appellant, submits that the training centre order is manifestly excessive, on the ground that the appellant is aged only 16 and has pleaded guilty to the offences, and that the offences are not the worst of their kind.

8.Mr Poon further submits that the usual sentence for criminal damage is a fine (as in HKSAR v. Au Yeung Yiu Man, HCMA 5/1999) and that for assaulting a police officer, the usual sentence is short-term imprisonment where the offence is not too serious in nature (as in HKSAR v. Chan Hung Yau, HCMA 183/2002 and HKSAR v. Yao Chi Yuen, HCMA 104/2000). 

9.Mr Poon submits that those who are sentenced to detention in a training centre are usually detained for 18 months and that, in light of the appellant’s guilty plea and on the facts of the present case, the training centre order is excessive.

10.As for the compensation order, Mr Poon urges the court to set it aside on the ground that the appellant is serving his sentence in a training centre and hence is unable to earn money to pay the compensation.

The appellant’s background

11.The appellant was born on 19 November 1992.  He is now aged 16 and was aged 15 when he committed the two offences in question.  His parents have been divorced, and his father was a fisherman.  He has lived with his grandparents since childhood but the grandparents were too lax in disciplining him.

12.On 24 February 2004, he was given a superintendent caution as he had committed three offences (burglary, making off without payment and theft).  On 10 May 2007, he was sentenced to probation for 18 months for an offence of assault occasioning actual bodily harm.  Subsequently, on 1 November 2007, he was sentenced to detention in a rehabilitation centre by reason of breaching the probation order.

13.The rehabilitation centre/detention centre/training centre suitability report prepared by the Correctional Services Department points out that the appellant criminally damaged the vehicle pursuant to someone’s instruction and for a reward of $2,000.  In other words, the appellant did not wilfully damage the property of another person as a practical joke.  Mr Poon submitted this morning that according to the appellant, the vehicle actually belonged to the appellant’s uncle and he had damaged the vehicle because he was unhappy with his uncle.  However, I do not accept this new account, which is at variance with what the appellant told the Correctional Services Department.   

14.In Wong Chun Cheongv. HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal laid down the following guidelines on the circumstances in which a training centre order can be made:

… the proper approach of a court to the making of training centre orders may be summarized as follows:

(1) The court should first be satisfied that the threshold requirements are met, i.e., that the offence is punishable with imprisonment, and that the offender is aged between 14 and 21.

(2) The court should then consider whether in the case at hand, the interest of the community requires that the rehabilitative approach should give way to a punitive or deterrent sentence. If so, the training centre option should not, save in exceptional cases, be adopted.

(3) If it is in the interest of the community to adopt a rehabilitative approach, then the court must have regard to the offender’s character and previous conduct, as well as the circumstances of the offence in deciding whether it is expedient that he should undergo a period of training in a training centre for his reformation and for the prevention of crime.

(4) Where the circumstances of the offence are such that a training centre order would be too lenient, the court is entitled to reject that option notwithstanding that the offender would otherwise be regarded as a suitable candidate for training.

(5) Similarly, where the offence committed is minor and would not otherwise call for a custodial sentence, detention in a training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender’s suitability as a candidate for training.

15.The offences committed by the appellant herein cannot be mentioned in the same breath with the act of soliciting ‘red packets’ in a New Year lion dance in Wong Chun Cheong.  On the facts of the present case and the background of the appellant, and applying the guidelines laid down in Wong Chun Cheong, I consider that the Magistrate properly sentenced the appellant to detention in a training centre and that the sentence is not too harsh.

16.Having regard to the appellant’s character, his previous conduct and the circumstances of the offences, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre.  The offences committed by the appellant were by no means minor.

17.Turning to the compensation order, Counsel for the appellant did in the course of mitigation inform the magistrate that the appellant was prepared to pay compensation of up to $5,000.  In fact, however, the appellant was jobless at that time and his father had just been released from jail in Zhuhai.  It was indeed doubtful whether the appellant was able to pay compensation.

18.The magistrate had allowed the appellant to defer payment of compensation for one year (i.e. to 31 December 2009).  However, the appellant was sentenced to detention in a training centre on 29 December 2008 and, given the usual period of detention is 18 months, the appellant will very likely still be in detention by the end of this year.  This being the case, it was inappropriate for the magistrate to order the appellant to pay compensation by the end of this year.

19.For the above reasons, I dismiss the appeal against the training centre order, but I allow the appeal against the compensation order and set aside that order.  It is open to the victim to bring a civil claim for damages against the appellant. 

Ms Winsome Chan, Senior Public Prosecutor, for the HKSAR.

Mr Jackson Poon, instructed by the Director of Legal Aid, for the Defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.