| IN THE SUPREME COURT |
Criminal Appeal |
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1979, No. 870 |
| BETWEEN |
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CHOW KIU BING |
Appellant |
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AND
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THE QUEEN |
Respondent |
Coram: Zimmern, J.
Date of Judgment: 5 October 1979
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JUDGMENT
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1. The Appellant was charged with assault occasioning actual bodily harm. The victim was his own father. On the 8th August, 1979 he pleaded guilty before a magistrate, had nothing to say after admitting the facts, and was remanded in custody to 28th August, 1979 for probation and detention centre reports. On return date the reports were discussed and the Appellant asked for leniency. The father also so asked and said he fell down. He was convicted and sent to the Dentention Centre. He now appeals against sentence.
2. The bare facts of the case as admitted by the Appellant was that he set on his father pursuant to an argument over a plug. In the heat of the argument he punched his father who fell on to the floor and when down was said to have been kicked. The victim was chased down a corridor and was punched again. He suffered fracture of the right 7th and 8th ribs, contusion of the chest, bruises over forehead and around both eyes.
3. The last two paragraphs of the Detention Centre report of the Intake Officer read as follows:
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"4) Employment: He started to work last year. He worked respectively as a petrol station worker, a hotel worker, a school labourer and a security guard. He changed his jobs very often as he could not stand boredom and poor earnings of work. Prior to his arrest, he was employed by the Hong Kong Security Co., Ltd. at Blk. J., 5/F, Island House, Hung Hom for 3 months. He earned $1400 per month and his work performance was reported to be satisfactory. |
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5) General information: He has no previous conviction and this is his first institutional experience. On admission, he admitted his offence and claimed that he did punch his father who was scolding his mother for minor matters. He confessed that he could not get along well with his father as he disliked him for his waywardness. While staying at home, he lacked proper guidance and discipline as his mother usually worked long hours and his father seldom stayed at home. During the remand period, this young man appeared to be stubborn and irritable that no prominent progress was seen in his performance and attitude. In view of the above, I am of the opinion that a period of disciplinary training would be to his benefit." |
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4. It is important to set out the probation officer's report in extenso which I do.
"Employment The defendant started taking up employment in late 1976 and his employment history is as follows:
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a labourer of a garment factory for about 2 months; |
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a waiter at Shatin Hotel for about 3 months with a salary of $700; |
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a school-coolie at New Method College for about a year with a salary of $550 plus daily meals; |
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a worker at ESSO Gasoline Station for about 3 months with a salary of $900 plus some commissions; |
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a security guard of Hong Kong Security Co., Ltd. for about 3½ months with a salary of $1400 up to his arrest for the present offence. |
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As verified by his Hong Kong Identity Card No. XXXXXXX and birth certificate No. 9 KC PR, the defendant was born in Hong Kong on 17.9.1957 and is therefore 21 years and 11 months old at present. |
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2. The defendant was brought up by a poor family of working class. His father (the victim), being a drug-addict with nine previous convictions mostly connected with drug offences for the last 27 years (CRO No. 14135/50), had all along been extremely irresponsible towards his family. Not only did he bring in no money for support, the father also repeatedly demanded money from his working wife or even took away valuable things from home for exchanging money for his own drugs. His mother therefore had worked rather hard in order to survive the whole family. Economic life of the family was said to have been very hard until all her three elder children became economically productive. In fact, her daughter, Mei-king, was given to Md. Chow Mei-king as her own child in order to alleviate the financial hardship of the family many years ago. Though working fairly unsteadily, the defendant also managed to contribute part of his income to his mother in order to show his support. |
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3. Emotionally, there were no relationship problems between the defendant and his family members except with his father. He was filial and dutiful to his conservative and hardworking mother. He also paid respect to his elder siblings and was concerned about his young brother. Just like his elder siblings, the defendant admittedly hated his father for his long years of irresponsibility as well as maltreatment towards his mother and siblings. According to the mother and elder brother, the defendant's father (the victim) was a bad-tempered drug-addict always ready to squeeze money from home. He could easily get into troubles with his family members when he failed to do so and he was used to displacing his anger onto his wife and children. So, domestic disputes and even fights between the father and other family members were not infrequent in the past. The defendant also alleged to have been indifferent or had no communications with his father for a long time though living under the same roof. |
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4. Insofar as his family members could tell, the defendant was never a clever boy perhaps as a result of his suffering from high fever or a serious fall that hurt his head in his childhood. So, he had a bad memory and did very badly at school. He was but strong and energetic in his physique and was fond of sports and games. He usually spent his spare time mostly on ballgames, running, swimming etc. outside or taking care of his fish-tank at home. He had no undesirable habits such as smoking or drinking nor kept any bad companies. Besides, he was kind and helpful to his neighbours. Among all siblings, the defendant appeared to be the one who cared for the mother most. Despite his regular contributions to her, he often spoke for his mother while she was quarrelling with her husband. So, the defendant and his father often came into conflicts with each other and their relationship was utterly poor. |
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5. The defendant's mother and eldest brother appeared a bit protective over the defendant in the present offence, alleging that the defendant had not hurt his father but the latter had himself accidentally hurt by the iron-gate while he was chasing after the defendant. However, the defendant admitted the commission of the offence yet with a plead that he got angry with his father (the victim), because the latter was addressing his mother with dirty and abusive languages in their quarrel and unplugging the air-bump of his fish-tank which was his pet-object at home. The defendant showed only very little sense of remorse, for he did not feel sorry for hurting his father. Moreover, he did not even ask for a chance and was ready to accept the sentence that he deserved. |
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6. To sum up, the defendant is believed to be a fairly well-behaved man who maintains a good relationship with his mother and siblings. Like his older siblings, he is willing to make contributions to his mother in order to support the family. However, the reasons for his dislike or, in his own word, hatred for his father (the victim) are mainly attributed to the latter's long years of drug addiction, irresponsibility towards the family as well as unreasonable behaviour to his wife and children. The defendant could have committed the offence out of his rage and impulsiveness. In view of his lack of remorse and obstinacy towards his misdemeanour, as well as that he seems to have no other problems of bad behaviour, the probation officer do have some doubt as to whether he is suitable for probation supervision. Hence, probation is not recommended for this case." |
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5. The magistrate in his statement of findings after repeating the bare facts admitted by the appellant said:
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"Defendant refused to say anything when called on. he appeared totally unconcerned. |
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Defendant is 22 and apparently has a clear record. Probation was not recommended. The Detention Centre Report recommended a period of disciplinary training. |
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On his subsequent attendance in Court Defendant still had nothing to say and no improvement in his attitude was discernible. The father then said 'be lenient, I fell down' as if to suggest it was an accident fall. I did not accept that: The nature and extent of the injuries and Defendant's own admissions to the Court, the Probation officer and the Intake officer at Pik Uk showed its falsity. |
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I considered that the circumstances required a period of custodial treatment and that the adult Detention Centre was an appropriate penalty for such an offence." |
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6. With respect to the magistrate I cannot agree with his reasoning nor can I agree with the recommendation of the intake officer. The law says that a young offender found guilty of a relevant offence may if the Court is of the opinion that in the circumstances of the case and having regard to his character and previous conduct it is in his interest and the public interest that he should undergo a period of detention in a detention centre make a detention order against him. First it is said that probation was not recommended. On my reading of the probation officer's report it was not a case of a young offender assessed to be beyond supervision. It was not recommended because he did not require it. Second, no regard was given to the appellant's character and previous conduct other that he had set on his father and had shown no contrition. All the matters in paragraphs 2, 3, and 4 of the probation officer's report set out above which speak so well for this unfortunate young offender born without much scholastic intellect were not considered at all. Third, as to his interest and the public interest this young offender has improved himself in the labour market since his first employment late 1976 as a labourer then a waiter then a school-coolie for a few hundred dollar a month to a security guard of Hong Kong Security Co. Ltd. with a salary of $1400 at the time of arrest and his work performance was reported to be satisfactory. On the facts of this case all a custodial sentence does is to ensure that he will no longer be employable in such a capacity or in any other disciplined service. This is neither in his nor the public's interest. The attack on his father was of course highly reprehensible but it was obviously the result of an uncontrolled eruption of pant up passion a simmering for a long time over the conduct of his wayward father, an isolated incident.
7. The appeal is allowed and the detention order is set aside and substituted by an order discharging him, with no conviction to be recorded, conditionally on his entering into a recognizance in a sum of $500 to be of good behaviour for a year and to appear for sentence when called on at any time during the year.
Representation:
Appellant in person
M. Lucas for Respondent
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