CHOW WING LEUNG v. THE QUEEN

CACC000850/1977

 

IN THE SUPREME COURT
	Criminal Appeal
	1977 No. 850

  

BETWEEN	-----------------
	CHOW WING LEUNG	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Morley-John, J.

Date of Judgment: 18th August, 1977.

 

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JUDGMENT

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1. The appellant pleaded guilty to five offences theft, forgery, uttering a forged document, obtaining money on a forged document and criminal damage. He was sentenced to detention in a training centre. He has appealed against this sentence on the ground that it is too severe.

2. The learned magistrate in his Statement of Findings stated that the appellant was 20 years of age, and on receipt of the Probation Officer's report his suspicions had been confirmed in that the appellant had been subject to deprivation and pressures likely to send any young man off the rails. That his personal life had become a mess as a result of his affair with a "femme fatale".

3. From the Probation Officer's report it appears that the appellant became emotionally involved with a Miss Poon who he at first thought was a sales girl and they first co-habited towards the end of 1976. In mid March 1977 the appellant discovered that Miss Poon was not a sales girl but a call-girl and that she was heavily indebted to a loan shark. She begged the appellant to assist her in repaying her debts and this was the reason why the appellant forged and stole as he did. Once the appellant had committed the offences, given Miss Poon the money and had committed a further offence on her behalf a quarrel broke out between the appellant and Miss Poon, apparently because having promised to cease to be a call-girl she had broken her promise and it was in a fit of rage that the appellant damaged Miss Poon's clothing the subject of the charge of criminal damage. Since the appellant's arrest Miss Poon has declared that she is no longer concerned with the appellant and has refused to be interviewed by the Probation Officer.

4. Before dealing with the case the learned magistrate adjourned the case in order to obtain a Probation Officer's report and then having obtained the report and taking all the circumstances of this case into consideration, the learned magistrate, quite correctly in my opinion, decided that the best way to deal with the appellant would be to send him to a detention centre and so again he adjourned the case to obtain the requisite report from the Commissioner of Prisons. Unfortunately during the time that the case was adjourned the appellant was brought before another magistrate charged with another offence of forgery which as I have already mentioned he also committed to help Miss Poon pay off her debts and the appellant received an immediate prison sentence of three months. Thus much to the surprise of the learned magistrate he was informed by the Commissioner of Prisons that because of the provisions of section 4(3) of the Detention Centre Ordinance Cap. 239 the appellant could not be accepted by the detention centre because he had previously served a sentence of imprisonment, that is the sentence of three months just referred to. Under the circumstances the learned magistrate sentenced the appellant to detention in a training centre but he stated that that was not the sentence that he wished to impose. He wished to give the appellant a short sharp shock in a detention centre and I respectfully agree with the learned magistrate that this would have been the ideal sentence. I also agree with the learned magistrate when he states that he does not think the inevitably long period in a training centre would be appropriate.

5. In his Statement of Findings the learned magistrate has said that he has encouraged the appellant to appeal. The learned magistrate stated:

"It may be that an Appellate Court would take the view that the words "has previously served a sentence of imprisonment" in section 4(3) of Cap. 239 could be given the construction that the prison sentence must have been concluded to preclude a Detention Centre sentence so that a Court in the position in which I found myself could in fact have imposed a Detention Centre sentence even though it would have to be consecutive to the prison sentence. When I convicted him after all he had not even been convicted elsewhere nor even started his prison sentence. It is alarming to think that a (say) 7 days prison sentence for non-payment of a fine would also have precluded Detention Centre treatment."

6. Again I share the learned magistrate's alarm but I am satisfied that in the circumstances of this case any order made committing the appellant to be detained in a detention centre would be null and void as such detention would have to be consecutive to the prison sentence and thus at the time the order was to come into operation the appellant would not be eligible for detention in a detention centre as he would have previously served a sentence of imprisonment. I cannot agree that the words "has previously served a sentence of imprisonment" can be given the construction that the prison sentence must have been concluded to preclude a detention centre sentence.

7. The appellant never appealed against his sentence of three months' imprisonment and at first I thought that the learned magistrate's problem could be resolved if I allowed the appellant to appeal against the sentence out of time and then deal with the two appeals together when I could consider whether I could substitute a sentence of detention in a detention centre. However I find that the appellant has already completed his sentence of three months' imprisonment in the Pik Uk Correctional Institution.

8. As I have said I agree with the learned magistrate that detention in a training centre is not appropriate in this case. The offences committed by this young man were all committed because of this woman with whom he became involved and from whom he is now separated. He is not likely to return to crime. He has already served his sentence at Pik Uk Correctional Institution which is a closed institution for young offenders where rigid discipline is maintained and under all the circumstances I shall allow the appeal to the extent that the order that the appellant be detained in a training centre be revoked and the following suspended sentences be imposed in lieu:-

	On charge (A) 9 months' imprisonment
	On charge (B) 9 months' imprisonment
	On charge (C) 6 months' imprisonment
	On charge (D) 6 months' imprisonment
	On charge (E) 3 months' imprisonment

such terms of imprisonment to be concurrent and be suspended for 18 months.

  

  

sd. (M. Morley-John, J.)

  

Representation:

Appellant in person

M. Boase, for Crown/respondent