Lee Hing Chung v. The Queen

CACC000844/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 844 OF 1974

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Coram: Pickering, J.

Date of Judgment: 14th October, 1974

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JUDGMENT

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1. The appellant pleaded guilty to membership of a triad society and was sentenced to detention in a detention centre. It is against that sentence that he now appeals. He was picked up in a routine police sweep and subsequently admitted to having joined the 14K Triad Society as an ordinary member, in 1968, undergoing an initiation ceremony known as "Hanging the blue lantern" and being taught a few simple triad poems and hand signs.

2. The learned magistrate has referred, in his Reasons for Sentence, to triad activity in Tsuen Wan having reached "epidemic proportions". He may well be right for he is the man on the spot with local knowledge which I do not have; and indeed this particular magistrate is known to be seriously, and no doubt rightly, concerned about triad activity in his area. Yet there must remain balance and perspective. No court must reach a stage at which the very word "Triad" produces an automatic reflex in regard to sentence.

3. When this young appellant, now 18, committed the crime of joining a triad society, he was 12 years old. Had the fact of his joining become known shortly after its occurrence, he would have been dealt with in a juvenile court. There is no evidence of any triad activity in the six intervening years. That he should now, by the accident of a natural accretion of years, be sentenced to detention in a detention centre for an offence committed at the age of 12, is disproportionate to any culpability and is manifestly excessive. The sentence visits upon an individual, magisterial concern about a situation for which the individual has minimal responsibility.

4. Let me not be misunderstood. Magisterial concern about the level of triad activity, or any other criminal activity, in a particular area, is admirable. It represents a social and professional conscience operating over and above the daily necessity of dealing piecemeal with each dreary case to come before the court. Yet let not such praiseworthy concern become an instrument for automatic heavy sentences. Each case is different - though admittedly frequently only marginally so from its predecessor. In the present case there was the distinctive feature, that the appellant was only twelve years old at the time of his offence, committed six years ago.

5. Both the report from the Commissioner of Prisons and that from the Probation Officer were favourable and the Probation Officer specifically recommended a two-year period of probationary supervision. The appeal is allowed. The sentence of detention in a detention centre is set aside and the appellant is placed upon probation for two years.

Representation:

J.N. Smart of J.N. Smart & Co. for appellant.

J.W. Dick, C.C., for respondent.