Kwan Chun-yee v. The Queen
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CACC000732/1969 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 732 OF 1969 -----------------
----------------- Coram: Morley-John J. Date of Judgment: 13 November 1969 ----------------- JUDGMENT ----------------- 1. The appellant in this case pleaded quilty before the learned Magistrate to a charge of robbery with aggravation. The facts of the case were that the appellant acted as watchman while a friend of his robbed a man in a lift of a wrist watch and in so doing wounded him and that after the robbery he and his friend sold the watch. 2. The learned Magistrate sentenced the appellant to 18 months' imprisonment, and the appellant has appealed against this sentence on the ground that the sentence is too severe. In support of this ground of appeal the appellant stated that he was ashamed of himself for committing this offence. He asked for the sentence to be reduced so that he could turn over a new leaf. He also said that he had made a mistake in becoming involved with bad company. 3. I find no merit in what was said by the appellant, however, I do notice that the appellant is 18 years of age, and therefore the provisions of section 109A of the Criminal Procedure Ordinance Cap.221 must apply. This section provides as follows:-
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. The learned Magistrate stated inter alia that the appellant was about 18 years of age if not more, (in the first paragraph of his Statement of Findings he said that the appellant was 17 to 18 years of age) that having considered the gravity of the offence, the appellant's previous conviction, the severe injuries suffered by the victim and the alarming frequency of such offences, he came to the conclusion that a severe sentence was proper in the case. 5. 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. 6. In view of the gravity of the offence together with the fact that the appellant already had one previous conviction for robbery with aggravation, and for that offence he had been placed on probation, I did not call for a Probation Officer's Report. 7. I have now received a report from the Commissioner of Prisons enclosing a report of his After-care Officer. In his report the After-care Officer after confirming that the appellant is 18 years of age, recommands that the appellant be admitted to a Training Centre; and in his report to me the Commissioner of Prisons states that after considering 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. 8. This being so in accordance with the provisions of section 109A of the Criminal Proceedings 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. 9. Accordingly this appeal is allowed to the extent that the prison sentence of 18 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: Appellant in person. Deputy Director of Public Prosecution for the Respondent. |