Attorney General v. Chong Hon Ying

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 8 OF 1973

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Coram: Rigby, C.J., Huggins & MuMullin, JJ.

Date: 7^th March 1973

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JUDGMENT

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Rigby, C.J.:

1.  This is an application by the Attorney General for review of a sentence imposed by a magistrate in respect of a 15-year-old youth who was found in possession, without lawful authority or reasonable excuse and in a public place, of a meat-knife and one metal chain. The application for review is made solely on the ground that the sentence imposed by the magistrate was, in fact, not authorized by law.

2.  This 15-year-old youth was, in fact, born on the 18^th March, 1957. The facts of this particular case were that he was found in the street in possession of a long meat-knife, which was tucked in his waist band and covered by his jacket, and he also had with him this metal chain. When questioned as to why he was in possession of these instruments, he apparently admitted that he had them because he wanted to rob other persons with these weapons.

3.  The respondent, despite his youth, had two previous convictions. In 1970, he was convicted of robbery and placed on a bond to be of good behaviour. He was then aged 13. In June, 1972, he was again convicted of the offence of theft, and on that occasion, he was placed on probation for a period of twelve months. When the case came before the Juvenile Magistrate, she very properly adjourned the case in order that she might have a report from a probation Officer and a report from the Commissioner of Prisons as to whether this youth was suitable for detention in a detention centre, and also whether he was suitable to be sent to a training centre.

4.  On the resumed hearing she had before her the report from a probation officer and the other reports to which I have referred. The report from the probation officer was not a report which does much credit to the respondent. The report from the Commissioner of Prisons indicated and stated that in the view of the person making that report the youth was not suitable for detention in a detention centre, but was both mentally and physically fit for admission to a training centre.

5.  The learned magistrate, a conscientious and experienced magistrate, took the view that what the respondent required was a long period of strict disciplinary supervision and, invoking the provisions of Section 11(2) of the Juvenile Offenders Ordinance and Section 4(1) of the Training Centre Ordinance, whilst directing that a conviction be recorded, she then ordered that the respondent be sent to a training centre.

6.  This application is brought solely on the ground that that order was one not authorized by the law in view of the mandatory provisions of Section 33(1) of the Public Order Ordinance. That section expressly provides that on a conviction for an offence under section 33, the offender shall be sent to a prison for a minimum period of six months’ imprisonment or, alternatively, be sent to a Detention centre. Once a conviction has been recorded, no other method of dealing with the case is provided for.

7.  We take the view that the provisions of Section 33(1) are, in fact, mandatory and override the general provisions contained in Section 11(2) of the Juvenile Offenders Ordinance and Section 4(1) of the Training Centre Ordinance and that once a conviction has been recorded, the Court has no alternative other than to sentence the offender to prison for a minimum period of six months, or alternatively, direct that he be sent to a detention centre. In the circumstances of this case, therefore, we have no alternative but to set aside the order made by the magistrate and direct that this 15-year-old youth be sent to prison for the minimum period of six months’ imprisonment. We would, however, draw attention to Section 7 of the Training Centre Ordinance. That section empowers the Governor to authorize the Commissioner of Prisons, in the appropriate case, to transfer a person serving a sentence of imprisonment who is under 21 years of age to a training centre. The actual provisions of the section are:-

“7.(1) If the Governor is satisfied that a person serving a sentence of imprisonment it under twenty-one years of age and might with advantage be detained in a training centre, he may, after consultation where practicable with the judge or magistrate who passed the sentence, authorize the Commissioner to transfer such person to a training centre; and the provision of this Ordinance shall thereupon apply to such person as if he had on the date of the transfer been sentenced to detention in a training centre.”

8.  We would suggest this might well be a case in which the provisions of this section are particularly appropriate.

Stratton, P.C.C. for Applicant.

Respondent in person.