Case Detail

CACC000752A/1981

[Court of Appeal has jurisdiction to make and discharge a probation order.]

IN THE SUPREME COURT OF HONG KONG	1981 No.752
(APPELLATE JURISDICTION)	(Criminal)

BETWEEN:

	TANG Chat	Appellant
	and
	THE QUEEN	Respondent

Coram: Roberts, C.J., Li & Silke, JJ.A.

Date: 9th May, 1983.

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JUDGMENT

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Roberts, C.J.:

Background

1. TANG Chat was originally sentenced to five years' imprisonment for three offences of burglary by a District Judge in August 1981. This court heard his application for leave to appeal against sentence on 3rd and 21st December, 1981.

2. On the latter occasion we took what, in view of the offences themselves and of the appalling criminal record of the appellant, must be regarded as an exceptional course. We quashed the sentence of five years' imprisonment imposed upon him and substituted a probation order, to be effective for a period of three years.

3. The appellant was told that if he behaved himself during the period of three years and obeyed the conditions which were attached to it, he would hear no more about the offences of burglary but that if he broke any of the conditions of his probation order or committed any further offence during the next three years, he would be brought back here, and might be sentenced for the burglary offences.

4. The appellant had a very bad record, as I have said, his first conviction having been recorded in 1960, when he was only 18. He had appeared before the court on twelve occasions and been convicted of twenty offences, the majority of which were for burglary.

5. We took the unusual course of imposing a probation order because the only form of treatment, since his first conviction in 1960, which had been imposed upon him had been that of imprisonment.

6. For about a year after the probation order was made, it appears that he behaved himself well and complied with all the conditions of the order. He lived with his brother, as he was obliged by the terms of the probation order to do for the first six months after it came into force, and reported regularly to the probation officer.

7. By the end of 1982, his resolution had failed. He had had a row with his brother and left him. He began to fall into bad company and to gamble.

8. He was arrested on 23rd January, 1983. As a result of his arrest, he ceased reporting to the probation officer and lost his job on the permanent staff of the Jubilee sports Centre, when he failed to attend for work without explanation.

9. On 1st March, 1983, he pleaded guilty to various offences before a magistrate at North Kowloon and was sentenced to six months' imprisonment for attempted burglary; to three months' imprisonment for going equipped for stealing, this sentence to run concurrently with the six months; and to two further periods of six months' imprisonment for theft, these two sentences to run consecutively to the six months for the attempted burglary. He was also fined on three other charges of giving false information to a pawnbroker, with further short periods of imprisonment in lieu of payment of the fines.

10. This court was duly notified by the probation officer of the appellant's breach of the terms of his probation order. Accordingly, we issued a warrant, addressed to the Commissioner of Correctional Services, asking that the appellant be brought before us today to consider what action should be taken in relation to the probation order which we had made.

Jurisdiction of Court of Appeal

11. An ingenious argument was advanced by counsel appearing on behalf of the appellant to the effect that this court has no jurisdiction to discharge or vary the probation order which we made on the 21st December, 1981.

12. This argument was based on the wording of section 6 of the Probation of Offenders Ordinance, which sets out the powers of courts in the event of a commission of a further offence by a probationer.

13. Counsel drew our attention to section 6(1) which provides that a judge or magistrate, "on whom jurisdiction is hereinafter conferred" may, where a probationer has been convicted of another offence during his probation period, issue a warrant for his arrest. The persons on whom jurisdiction for the purposes of section 6(1) is conferred are a High Court Judge, a District Court Judge and a Magistrate. There is no reference to a Justice of the Court of Appeal.

14. Section 6(5) of the Ordinance confers power on the court before which a probationer "appears or is brought pursuant to this section" to deal him for the offence for which the order was made. It was submitted to us that the words pursuant to this section" must govern both "appears" and "is brought". We do not take that view. We think that a court may exercise the powers conferred by section 6(5) if a probationer is brought before it in accordance with a warrant issued under section 6, or if the probationer appears under some other authority.

15. In this instance, the probationer was not brought before us in pursuance of a warrant issued under section 6(1). He appeared before us in accordance with a warrant issued on behalf of this court, so that we might consider further the conditional order which we made on 21st December, 1981.

16. Section 83I(3) of the Criminal Procedure Ordinance, provides that the Court of Appeal, on an appeal against sentence, may -

"quash any sentence or order which is the subject of the appeal and in place of it pass such sentence or make such order as it thinks appropriate and as the court below had power to pass or make when dealing with him for the offence."

17. When this matter came before us in December 1981, we quashed, in accordance with those powers, the sentence passed by the District Court and substituted a probation order in lieu of a sentence of five years' imprisonment. We included in that probation order various conditions, some of which have been broken by the appellant.

18. Had the District Court itself made that probation order, the District Court would have had power to bring back the appellant and to deal with him for breach of it. Since section 831(3) confers on this court the powers of the District Court in relation to an appeal against a sentence imposed by it, we are satisfied that we can discharge the probation order which we made, as the District Court could have done.

19. We are not prepared to concede, as we were asked to do, that we can make a probation order, on an appeal against sentence, but that we are then powerless to amend or discharge it. We make the order as if we were the District Court; and we can amend or discharge it similarly.

Sentence

20. It is unfortunate that the appellant has not taken advantage of the opportunity which we gave him to turn his back on the life of professional crime which he appeared to have adopted, and to which he now seems to have returned.

21. We see no reason, in view of his breach of the order, why we should not now revoke the probation order and restore the sentence of five years' imprisonment, originally imposed by the District Court.

22. Taking into account, however, that he is already serving a sentence of eighteen months' imprisonment for the offences to which he pleaded guilty in March, and of the fact that he appears to have made a real effort for about a year, to live a respectable life, we will order that the sentence of five years' imprisonment shall run concurrently with the sentences which were imposed by the magistrate at North Kowloon on the 1st March, 1983.

23. That means, in effect, that after he has finished the North Kowloon sentences he will have about another three and a half years to serve, less any remissions which he may earn.

Representation:

M. Moorfoot, Crown Counsel, for the Crown.

S. Cunningham (D.L.A.) for TANG Chat.

CACC000752/1981

[Man with bad record may sometimes be given a late chance.]

IN THE COURT OF APPEAL	1981 No. 752
	(Criminal)

BETWEEN:
	TANG Chat	Appellant
	and
	THE QUEEN	Respondent

Coram: Roberts, C.J., Li & Silke, JJ.A.

Date of Judgment: 21st December, 1981.

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JUDGMENT

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Roberts, C.J.:

1. TANG Chat was sentenced by a district judge to five years' imprisonment for burglary. He has an appalling criminal record. He is now aged 40 and the first conviction recorded against him was in 1960, when he was 18. Since then he has appeared before the courts on 12 occasions, with a total of 20 convictions for various offences, the majority of which were burglary.

2. The district judge took the view, with which it is difficult to disagree, that this was a persistent offender and that a substantial sentence was justified in view of the need to protect the public against his activities.

3. Having examined the long and sorry record of this appellant, we have come to the conclusion, however, that this is one of those rare cases in which it is proper for the courts, notwithstanding a man's bad record, to give him one last chance to live a normal life.

4. We observe that, in the cases to which he pleaded guilty, the amount of property stolen was not large and no violence was used by the defendant, who had entered only unoccupied premises.

5. We are strongly influenced by the fact that, save in regard to his very first conviction in 1960, when he was bound over, the only form of treatment which has been attempted in his case has been that of imprisonment. He has been sent to prison no less than 11 times, with sentences ranging from 3 months to 3½ years.

6. We have been supplied with most helpful reports from the Clinical Psychologist at Lai Chi Kok and the Probation Officer, Mr. Peter Tam. The Clinical Psychologist finds that the appellant is functioning at what he calls "the borderline region between limited and low average intelligence."

7. The probation report states that the brother and sister-in-law of the appellant are prepared to take him into their home and to do what they can to find employment for him. They are quite optimistic about the possibility of finding him work.

8. We are therefore prepared to take the unusual course of making a probation order, in the hope that this will give the defendant an opportunity to take employment and to stay out of trouble.

9. The following conditions will be attached to the probation order. During the period of the probation order you must behave yourself and keep out of trouble. You must keep in touch with the probation officer and obey whatever instructions he gives you. If he wants to visit the place where you are living, you will have to receive him there.

10. You will have to tell the probation officer what work you are doing, when you change your work and if you change your place of residence.

11. For the first six months after your release from prison, you must live with your elder brother. You must not go and live anywhere else during this period without the permission of the probation officer.

12. This probation order will last for a period of three years. If you behave yourself during that time and obey these various conditions, you will hear no more about this offence of burglary. But if you get into any trouble during the next three years, you will be brought back to court here and may be sentenced for burglary.

13. The appeal against sentence therefore succeeds, the sentence of five years' imprisonment is quashed and a probation order in the terms which I have explained to the appellant will be substituted for it.

Representation:

F.C. Whitehouse, Crown Counsel for Respondent.

J. Bleach & Esther Toh (D.L.A.) for Appellant.

TANG CHAT v. THE QUEEN

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