Chan Wai-ming v. The Queen
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CACC000719/1969 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 719 OF 1969 -----------------
----------------- Coram: Morley-John J. Date of Judgment: 13 November 1969 ----------------- JUDGMENT ----------------- 1. The appellant in this case pleaded guilty before the learned Magistrate to a charge of robbery with aggravation. 2. The brief facts of the case were that the appellant robbed a woman at knife point in a lift. He was later apprehended. 3. The learned Magistrate sentenced the appellant to 15 months' imprisonment, and the appellant has appealed against this sentence on the ground that the sentence was too severe. In support of this ground the appellant stated that he had no father, only a mother, that his family were poor, and that he and his younger brother were the sole supporters of the family. 4. I find no merit in what was said by the appellant, however, I do notice that the appellant is aged 20, and therefore the provisions of section 109A of the Criminal Procedure Ordinance Cap. 221 must apply. This section provides as follows :-
5. In his Statement of Findings the learned Magistrate stated, inter alia.
6. From this statement it would appear that the learned Magistrate had in mind the provisions of section 109A of the Criminal Procedure Ordinance, however, the latter part of that section does provide that 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. 7. At the hearing of the appeal Counsel for the Respondent, the Crown, agreed with me that the word "obtain" in the section should be interpreted as meaning that a court should do more than take into account the information on the record before it. In this case the learned Magistrate has also said that he had heard and considered the information about the circumstances "of the crime", however there is nothing that appears in the record of the proceedings or in his Statement of Findings to indicate what information the learned Magistrate had heard and considered or how he had obtained this information. Further, the learned Magistrate does not appear to have obtained and considered any information relevant to the character of the appellant and his physical and mental condition. 8. I am of the opinion that the words "shall obtain and consider information about the circumstances" should be interpreted as to obtain and consider information about the whole of the circumstances surrounding the case including the character of the appellant and his physical and mental condition to ascertain whether there is any method of dealing with the appellant other than sentencing him to prison. In this case I consider that the provisions of section 109A can only be properly complied with, when consideration has been given to a Probation Officer's report and also to a report from the Commissioner of Prisons, as to the appellant's suitability for detention in a Training Centre. There was no indication on either the record of the proceedings or in the learned Magistrate's Statement of Findings which indicate that this was done. 9. Under the circumstances I adjourned this appeal, and called for a report from the Probation Officer and from the Commissioner of Prisons. I have now received these reports and I am also satisfied that no such reports were in fact called for by the learned Magistrate. The Probation Officer is of the opinion that a rehabilitation sentence would be more appropriate than a sentence of imprisonment and he suggests a sentence of detention in a Training Centre. The After-care Officer in his report to the Commissioner of Prisons recommends that the appellant should be admitted to a Training Centre and in his report to me the Commissioner of Prisons states that after having considered the report of his After-care Officer, he is of the opinion that the appellant is mentally and physically suitable for detention in a Training Centre. 10. I agree that the offence committed by the appellant was a serious one, and I sympathise with the learned Magistrate when he stated that he was of the opinion that no other method of dealing with the appellant was appropriate in the light of the requirement for a deterrent sentence. But in the light of the provisions of section 109A of the Criminal Procedure Ordinance I am satisfied that the correct method of dealing with the appellant is to sentence him to a period of detention in a Training Centre. 11. Accordingly this appeal is allowed to the extent that the prison sentence of 15 months is quashed, and in substitution therefor the appellant is sentenced to detention in a Training Centre in accordance with the provisions of the Training Centres Ordinance, Cap. 280. Representation: D. Boy, D.D.P.P., for Respondent. |