Cheung Nai-hon v. The Queen
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CACC000072/1982 [Caning - first offender - no violence involved in offence - medical report to be obtained - full background to be explored before ordering caning of youth] IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 72 OF 1982 --------------------------------------
---------------- Coram: O'Connor, J. Date: 3 March 1982 _______________ J U D G M E N T _______________ 1. The appellant pleaded guilty to two charges of theft and was sentenced to six strokes of the cane. He appeals against sentence. The facts put before the learned magistrate disclosed that the appellant, who is a 15 year old boy, was found by police officers inside a building with 13 other young persons. There was no information as to the type of building or what part of it they were found in. They had a number of articles including two boxes of oranges and 35 catties of noodles. The police officers took the young persons back to the police station, where the appellant made a statement admitting that he had stolen the oranges and noodles. The owner was traced and said they had been taken from his hawkers stall when it was unattended. The appellant had a clear record. Those were the only relevant facts before the learned magistrate when he passed sentence. He was sitting with a lay assessor who approved of caning. The learned magistrate thereupon, without calling for any reports, ordered that appellant suffer six strokes of the cane. 2. In his statement of findings the magistrate says that in court the appellant's demeanour was one of arrogance and defiance and that he smirked and waved at his friends in court. He says that he considered the offence was committed more out of bravado than dishonesty and that he felt the appellant was not in need of future guidance and control. That was a bold finding to make on the sparse information before him. 3. The learned magistrate did not call for a medical report as to the appellant's fitness to undergo caning. Such a report should always be called for before ordering caning, see R. v Wong Keung Cr. App. 121/71. The appellant was a first offender. A sentence of caning ought not, as a general rule be passed on a first offender unless substantial violence was involved in the commission of the offence, R. v. Fung Man-cheung (1963) HKLR 18. There was no such violence here. 4. As a matter of practice before ordering a caning a magistrate should obtain full information about the circumstances of the offence and the background and character of the offender. The latter information is readily obtainable from a probation officer. 5. I obtained a probation report. The appellant comes from a stable, responsible home environment, with caring parents. He had run away from home two days before the offence, after having had a quarrel with his mother. He had been rebellious for some time. He met the young persons with whom he was arrested and stayed with them. He stole the oranges and noodles when he saw an unattended stall. 6. I considered that the public interest and the appellant's interest coincide in indicating a rehabilitative measure, best achieved under the supervision of a probation officer and without proceeding to conviction. I therefore gave leave to appeal out of time against conviction, set aside the conviction and sentence and put him on probation for a period of 18 months. 7. Consideration might be given to bringing the provisions of S.36 of the Magistrates Ordinance into harmony with the provisions of S.3 of the Probation of Offenders Ordinance. The former has provision for a discharge 'without recording a conviction' while the latter has provision for probation 'without proceeding to conviction.'
Representation: J.N.Midgley of Haldane, Midgley & Co. for the appellant S.R.Mason-Parker, Crown Counsel, for the Crown/respondent |