HUI HUNG CHEUNG v. THE QUEEN

bjbj CACC000616/1977

IN THE SUPREME COURT

CRIMINAL APPEAL 1977 No. 616 -----------------

BETWEEN

HUI HUNG CHEUNG Appellant

THE QUEEN Respondent ----------------- Coram: Morley-John, J. Date of Judgment: 15th July, 1977. -----------------

JUDGMENT ----------------- The appellant pleaded guilty to three charges, namely, conspiracy to rob; possession of an offensive weapon in a public place contrary to section 33(1) of the Public Order Ordinance, Cap. 245; and, thirdly, going equipped for stealing contrary to section 27 of the Theft Ordinance, Cap. 210, and the learned magistrate sentenced him respectively to two years, two years and one year's imprisonment, such sentences to be served concurrently. It is against these sentences that the appellant now appeals. His grounds of appeal are that the sentence of two years' imprisonment was manifestly excessive in all the circumstances, and the learned magistrate failed adequately to take into account the appellant's youth. The appellant was not yet sixteen when he was sentenced, although from the papers it is clear that the learned magistrate thought that he was sixteen years of age. Also that the learned magistrate failed adequately to take into consideration that the appellant pleaded guilty. Further the learned magistrate imposed a sentence of two years' imprisonment on the appellant, whereas he imposed a very much more lenient sentence upon the two other accused persons who with the appellant pleaded guilty to the same offences. The two other persons who were older than the appellant, namely 17 and 18 years of age, and of whom one was clearly the ringleader were

merely sentenced to detention in a detention centre. Lastly the learned magistrate erred in attaching too much weight to the fact that the offences were committed when the appellant was on probation. The reason that the learned magistrate did not sentence the appellant to detention in a detention centre was that he was found to be medically unfit for detention in a detention centre, and as one of the offences to which he pleaded guilty was possession of an offensive weapon in a public place contrary to section 33 of the Public Order Ordinance the learned magistrate was unable to send him to a training centre because section 33(2)(b) of the Public Order Ordinance provides inter alia: "A person convicted of an offence under sub-section (1) shall if he is not less than 14 years of age and has not attained 17 years of age, be sentenced to detention in a training centre under the Training Centres Ordinance but only if the Commissioner of Prisons has informed the court that in his opinion the offender is suitable for detention in a detention centre but that no place is available for him in a detention centre". Therefore as the law now stands a young offender can only be sent to a training centre if he has committed an offence against section 33 of Cap. 245 if he is suitable for detention in a detention centre but no place is available in a detention centre. The learned magistrate was

faced with two alternatives in this case, either ordering the appellant to be caned or to send him to prison. This was a bad case and I agree with the learned magistrate that corporal punishment was not appropriate in this case. In my opinion the most suitable sentence in this case would have been detention in a training centre. The appellant is just sixteen years of age, he was on probation at the time he committed these offences as a result of charges of theft, going equipped for stealing, and claiming to be a member of a triad society. The probation officer suggested that further probation was inappropriate and the Commissioner of Prisons when stating that the appellant was medically unfit for detention in a detention centre stated that he was fit for detention in a training centre, but with the reservation that because of the provisions of section 33 of Cap. 245 he could not be sentenced to detention in a training centre which is quite correct. Counsel for the appellant pointed out that the maximum term in which the appellant's co-accused could be detained in a detention centre was six months, whereas the appellant because he is not medically fit to go to such a centre has been sent to prison for two years, which taking maximum remission into account, will mean a minimum detention of 16 months. Counsel contends that the disparity between the sentences is too great even

taking into account that the accused was on probation as a result of similar previous offences at the time of committing these offences. Under all the circumstances I allow the appeal to the extent that a sentence of 18 months' imprisonment be substituted for the original sentence of two years. However, as I have already stated I consider the proper sentence in this type of case would be detention in a training centre. In a case similar to this, The Attorney General v. Chong Hon-ying(1) the Full Court, as it then was, in sentencing a fifteen-year-old boy to prison stated as follows: "We would however draw attention to section 7 of the Training Centres Ordinance. That section empowers the Governor to authorise the Commissioner of Prisons in the appropriate case to transfer a person serving a sentence of imprisonment who is under twenty-one 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 is 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 authorise 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. We would suggest this might well be a case in which the provisions of this section are particularly appropriate." With respect I adopt the suggestion of the Full Court in that this present case may well be one in which the provisions of section 7 of the Training Centres Ordinance are particularly appropriate. sd. (M. Morley-John, J.) Representation: Mr. Robert Kotewell, instructed by (Yung, Yu, Yuen & Co.) for the Appellant Mr. C.M. Hindle, C.C. for Crown/Respondent. (1) 1973 H.K.L.R. 145

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