HKSAR v. LEUNG WAI MING
- Citation
- HKSAR v. LEUNG WAI MING
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 8 March 2006
- Posture
- Criminal Appeal — Sentence / Rehearing Before Deputy High Court Judge
- Case number
- HCMA1184/2005
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 8 March 2006
- Posture
- Criminal Appeal — Sentence / Rehearing Before Deputy High Court Judge
- Case number
- HCMA1184/2005
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was allowed because materially different evidence (post-sentence probation report showing genuine remorse and behavioural change plus time already served) rendered a probation order of 18 months with specified conditions the appropriate disposal instead of the earlier detention centre order.
Court disposition
Appeal allowed; original detention centre order substituted with an 18-month probation order with conditions.
Orders
- Allow appeal and quash detention centre order dated 10 November
- Make a probation order for 18 months
- Attach curfew and participation in social and educational programmes as directed in the probation report
02
Material facts
Parties
Leung Wai-ming
AppellantHKSAR
Respondent Counsel: Ms Sally Yam, Government Counsel, Department of JusticeAmounts and remedies
- Amount Stolen: HKD 570
- Age of Appellant: 21
- Months of Detention Served Prior to Rehearing: months 3
03
Procedural history
Posture
Criminal Appeal — Sentence / Rehearing Before Deputy High Court Judge
04
Questions and positions
Legal issues
- 01
Whether the detention centre sentence should be varied to a probation order in light of changed circumstances
- 02
Appropriate punishment for theft involving breach of trust and small monetary value
- 03
Weight to be given to remorse and post-sentence conduct/reports
Party arguments
- Applicant
- Appellant pleaded guilty, is remorseful, had served over three months of the detention centre order, demonstrated a complete change of attitude in a subsequent probation report, and therefore should be released to an 18-month probation order with conditions.
- Respondent
- Respondent maintained the original sentence was justified given the breach of trust and reports available at the time; however the court acknowledged the original sentence was firm but not necessarily wrong and considered the new material.
05
Court’s reasoning
Legal principles
- 01
Common law sentencing principles
Sentencing must balance punishment, deterrence and rehabilitation (proportionality)
- 02
Appellate practice and case law
Appellate court may rehear and vary sentence where fresh material or change of circumstances justifies a different order
- 03
Sentencing practice and rehabilitative principles
Youth, clear prior record, remorse and positive probation reports are mitigating factors relevant to non-custodial disposal
06
Ratio, limits and disposition
Ratio decidendi
The appeal was allowed because materially different evidence (post-sentence probation report showing genuine remorse and behavioural change plus time already served) rendered a probation order of 18 months with specified conditions the appropriate disposal instead of the earlier detention centre order.
Obiter and limits
- A detention centre sentence of 3–12 months will often result in roughly seven months actual custody in practical terms.
- The fact that a court substitutes a less severe order does not mean the original sentence was incorrect on the material before the magistrate.
- Age (21) and a previously clear record are significant mitigating factors when considered with rehabilitation prospects.
Court disposition
Appeal allowed; original detention centre order substituted with an 18-month probation order with conditions.
- Allow appeal and quash detention centre order dated 10 November
- Make a probation order for 18 months
- Attach curfew and participation in social and educational programmes as directed in the probation report
Source and reliance status
Court of First Instance · 8 March 2006
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 8 March 2006
bjbj ntion centre passed following a plea of guilty to an offence of theft.
2. The appellant was a 21-year-old waiter with a clear criminal record. He was trusted by his employer to deliver some food and collect the money for it. He did that, but then he went off with the money and stole it. The amount involved was $570.
3. At 21 years of age the sentence of detention centre, whilst of course it is an indeterminate sentence of between 3 and 12 months, means in practical terms that the appellant would be locked up for some 7 months. Of course, it was a case involving a breach of trust, but at the age of 21 with a clear record, and only $570 being involved, the sentence was a firm one.
4. Looking at the reports that were then available to the magistrate, firmness was called for. The picture painted was a thoroughly unattractive one. Laziness, theft within the family, soft drugs, and a thoroughly bad attitude to life in general.
5. The sentence was passed on 10 November of last year, so when this appellant first appeared before me a fortnight ago, he had served over three months of that detention centre order. In view of the remorse he then expressed before me and the fact that he had been subject to that strict regime for over three months I decided to order a further report and I am pleased to say it really is a very good one. It demonstrates a complete change of attitude and the probation service now recommends a probation order, having been firmly of the view that one was not appropriate before.
6. This appeal against sentence is a rehearing before me. The circumstances are very different from the circumstances that existed before the magistrate. On the material available to me now I judge it right to make a probation order lasting 18 months with the curfew and the condition of participation in social and educational programmes as directed that is set out in the report.
7. As things existed back in November this defendant deserved some punishment. That has been achieved. It is merely because the circumstances have changed that I am now in a position to make a different order. The fact that I make this order today does not mean that the order made back in November was wrong.
8. The appeal is allowed and the sentence I pass today is one of 18 months probation with the two few special conditions. (P Line) Deputy High Court Judge Ms Sally Yam, Government Counsel of the Department of Justice, for the Respondent (HKSAR) Appellant: Leung Wai-ming (
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