Choi Fung-sang v. The Queen
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CACC000842/1979
Coram: Roberts, C.J. Date of Judgment: 21 September 1979 ----------------- JUDGMENT ----------------- 1. The appellant Choi Fung-sang was born in November 1956 and is thus 22 years of age. He pleaded guilty to an offence of attempted burglary. 2. On the morning of the 23rd July, he was seen acting suspiciously on the 18th floor of On Hong Building at Tai Par Street, Tsuen Wan. The person who observed him reported to the police. Shortly afterwards, a police officer arrived and saw the appellant trying to open the iron gate of the flat, using a nylon rope. He was arrested and taken to Tsuen Wan Police Station where, under caution, he admitted the offence. 3. The trial magistrate having called for and considered reports from a probation officer and the Prisons Department, sentenced the appellant to detention in a detention centre. 4. Mr. Cheng, who appeared on his behalf, put forward the objection that the magistrate, at the time when the appellant pleaded guilty, had his attention drawn to what was described as a previous conviction of a similar nature. 5. It appears, from a note at the foot of the probation report, that the appellant was before the courts in 1972, when he was only 15 years of age, and that he was put on probation for one year, although no conviction was recorded against him. It seems likely that the magistrate in that case made a probation order without proceeding to conviction under section 3(1) of the Probation of Offenders Ordinance (Cap. 298). 6. In those circumstances, he submitted that the previous "conviction" should not have been drawn to the magistrate's attention by the Crown. Mr. Cheng referred me to Lee Hok Ming v. The Queen(1) in which Mr. Justice Huggins, made it clear that, where no conviction is recorded, it should not be referred to as a conviction. 7. He went on to say that the general rule is that where no conviction is recorded, it should not ordinarily be referred to for any purpose, though he cited, as an exception to this, cases in which the commission of an earlier offence, in respect of which no conviction was recorded, might be relevant to the proof of a subsequent offence. 8. I suggest that there is another exception which must be admitted, for practical reasons. If, as a result of an appearance before the court at which no conviction is recorded, a probation order is made, it is desirable for the court to take the fact of such a probation order, and the accused's behaviour while subject to that order, into account when deciding the proper sentence to be imposed in the particular case before the court. 9. Indeed, if a court has called for a probation report, and the defendant had been on probation fairly recently, it is difficult to see how the probation report could avoid mentioning the previous history of the defendant while on probation, which will involve a disclosure of how the probation order came to be made. 10. In this particular case, however, there has been a gap of about 6 years since the end of the probation order imposed in 1972, and it is therefore a factor of no importance. Indeed, although the fact of the probation order was referred to by the probation officer, he said nothing about the behaviour of the appellant during his period of probation. 11. There is nothing in the magistrate's statement of findings to suggest that he gave any particular weight to what he described as a "previous conviction" for theft, though it must have been apparent to him, since he notes in his judgment that no conviction was recorded, that the earlier incident was not regarded by the trial court in 1972 as one of great seriousness. 12. The probation officer recommended a probation order for 18 months. The detention centre report stated that he was thought to be suitable for detention in a detention centre and that a place was available for him. There were thus two obvious courses which were open to the magistrate. 13. The appellant appears to have conveyed to the magistrate a somewhat different impression from that which he gave to the probation officer and to the officer who completed the detention centre report. Unlike the magistrate, both the latter seemed to have been impressed by what they saw as the appellant's sense of remorse for what he had done. 14. The appellant was in gaol custody for about 2 weeks and in the detention centre for about 6 weeks. I would like to think that these periods of detention will have achieved the object which the magistrate thought was most important, namely that the appellant was in need of a shock, in the hope that this will discourage him from further offences. 15. I cannot say that I think that the magistrate was in any way wrong in principle, in imposing the sentence which he did. However, I am prepared to accede to his counsel's submission that a probation order should be substituted for the detention centre order. 16. It was useful to me in coming to this conclusion to be informed that regular employment is available to him and that his prospective employer is sufficiently interested in him to attend here today to give evidence if he was called upon to do so. 17. Therefore, I allow the appeal, quash the sentence of detention in a detention centre, and substitute instead a probation order for 18 months, on the usual conditions contained in the standard form. Representation: Cheng Huan (Gallant Y.T. Ho & Co.) for appellant Stock for crown/respondent (1) Crim. App. 176/78 |