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Wong Chun Cheong v Hksar

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date08 January 2001
Year2001
Citation[2000] 3 HKLRD 840; (2001) 4 HKCFAR 12
Judgement NumberFACC9/2000
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC000009/2000 WONG CHUN CHEONG v. HKSAR

FACC000009/2000

FACC No. 9 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2000 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 779 OF 2000)

_______________________

BETWEEN:

WONG CHUN CHEONG

Appellant

AND

HKSAR

Respondent

_______________________

Court:

Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Mr Justice Silke NPJ

Date of Hearing and Decision: 21 December 2000

Date of Handing Down of Reasons: 8 January 2001

_______________________

J U D G M E N T

_______________________

Chief Justice Li:

1. At the conclusion of the hearing on 21 December 2000, we allowed this appeal, setting aside the magistrate's order that the appellant be detained in a training centre and, in the light of the fact that he had already spent 4 months in such detention, substituted a fine of $100. We indicated that we would give our reasons later and this we now do by the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. On 17 February 2000, the third day of the lunar new year, the appellant, then just under 17 years of age, was taking part in a lion dance in Kwun Chung Street Market. He was beating the drum and his three companions were manipulating the lion. They were soliciting lucky money or new year "red packets" from the stall holders.

3. The appellant was arrested by the police and convicted before the magistrate of participating in a lion dance in a public place without a permit, contrary to section 4C(1) of the Summary Offences Ordinance, Cap 228. The maximum sentence for this offence is a fine of $2,000 and imprisonment for 6 months.

4. There was no evidence that the conduct of the appellant or his associates (who he admitted were triad members) involved any intimidation or extortion or, indeed, anything unlawful apart from their not having a permit. It was plainly an offence which would not normally call for a custodial sentence. Indeed, the Director of Public Prosecutions, Mr Grenville Cross SC, appearing with Mr Peter Chapman and Ms Lily S L Wong for the respondent, informed us that in recent years convictions for this offence have all resulted in fines except for one in which the defendant was bound over. Nonetheless, having had regard to the appellant's background (to which this judgment will return), the magistrate, R B McNair Esq, decided upon a sentence of detention in a training centre.

5. This meant that the appellant was to be detained in a training centre for a minimum of 6 months and up to a maximum of 3 years (as determined by the Commissioner of Correctional Services). In practice, we were told by Mr Cross, inmates on average spend 18 months in detention. The sentence also meant that after his release, the appellant would be subject to a regime of supervision and conditions regulating his conduct for a further period of up to three years, the sanction for any misbehaviour during that time being recall to the training centre.

The issue

6. This is accordingly a case where the minimum period of detention ordered equals the maximum period of imprisonment prescribed for the offence and where the appellant is at risk of being detained in the training centre for up to five times that statutory maximum. This appeal therefore raises in sharp relief the issue of whether and to what extent it is justifiable to sentence a young offender to detention in a training centre because he has committed a relatively trivial offence not otherwise calling for a custodial sentence.

7. The magistrate, having considered the relevant reports, imposed the sentence because he believed that it was for the appellant's own good and in order to save him from a "downward spiral into a subculture and lifestyle which [would] have him returning to the court on more serious matters." On appeal, Beeson J took the same view, commenting that it was important "that this offender's problems and needs be addressed as soon as possible."

8. There is no doubt that both the magistrate and the judge acted out of the noblest of motives. However, can such a sentence be justified on the basis that it is for a young offender's "own good"?

9. Before the twentieth century, the answer would have been a clear "No". Conservative thought focussed on retribution, deterrence and the protection of society, laying little emphasis on reform of the offender as the object of penal policy. Liberal nineteenth century philosophers would have rejected the notion of detention for an offender's own good as an unwarranted application of the state's power. Thus, in a well-known passage in his essay On Liberty, John Stuart Mill wrote as follows :-

" ... the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." (Harvard Classics, 1909 Ed, Vol 25, p 212)

The traditional approach was simply one of imposing a sentence proportionate to the offence. Professor H L A Hart, cites a description of such approach as follows :-

"Sentencing used to be a comparatively simple matter. The primary objective was to fix a sentence proportionate to the offender's culpability, and the system has been loosely described as the 'tariff system'. ... In addition, the courts have always had in mind the need to protect society from the persistent offender, to deter potential offenders and to deter or reform the individual offender. But in general it was thought that the 'tariff system' took the three other objectives in its stride: giving an offender the punishment he deserved was thought to be the best way of deterring him and others and of protecting society." (Punishment and Responsibility OUP 1968, pp167-168, quoting from the Streatfield Report, Cmd 1289 (1961), paras 257-8)

10. The idea of imposing individualized sentences reflecting the offender's record, personal circumstances and background with a view to his rehabilitation is therefore of comparatively recent origin. Professor Hart (op cit, p 165) traces the changes to the Gladstone Report of 1895, following which a range of sentencing options were introduced, including probation, Borstal training, corrective training, preventive detention, as well as powers of absolute and conditional discharge, whereby :-

"For the first time [judges] were charged with the duty of considering the suitability of a sentence whose aim was sharply differentiated from retribution for past wickedness ... and [they] were made to participate in an activity which in the main had been a matter for administrators."

11. Judges have frequently found it less than easy to decide how the competing, and often conflicting, demands of proportionate punishment on the one hand and reform on the other, can be reconciled in particular cases. Professor Hart illustrates the point by reference to sentences of Borstal training, the institution upon which Hong Kong's training centres are based :-

"... our judges have always felt uneasy when faced with a conflict between what they consider to be a punishment appropriate to the seriousness of a crime, and the steps which one of the individualized forms of punishment might require. Sometimes this emerges into the light of day in reported cases. Thus it is now the law that a young offender may be sent to borstal training which may last as long as three years, although his last offence is punishable by a maximum penalty of one year. But, for many years, courts of first instance have refused to do this and the Court of Criminal Appeal upheld them in this until last year [in R v Amos (1960) 45 Cr App Rep 42] when, by a sudden reversal of principle, hard indeed to reconcile with a doctrine of binding precedent, the offender's last offence was allowed to figure as a symptom of the need for reformative treatment rather than as determining by itself the measure of punishment." (Ibid, p 167)

The question at the heart of this appeal is whether it is acceptable as a matter of law to treat the offender's last offence "as a symptom of the need for reformative treatment" and therefore as the basis for imposing a training centre sentence, regardless of its triviality.

12. One may note incidentally that it is no longer the law in England that a period of detention for training may exceed the maximum for the relevant offence: see Crime and Disorder Act 1998, section 73(6).

The judges' ambivalence

13. Given the nature of the problem, it is not surprising that the cases show a marked ambivalence on the part of the judges (both in the UK in relation to Borstal and in Hong Kong in relation to training centres) regarding the correct approach.

14. Two lines of authority have developed. In the first, the courts have refused to make Borstal or training centre orders on the ground that the resulting period of detention would be wholly disproportionate to the gravity of the offence for which the defendant was convicted.

15. Thus, in R v Longstreeth (noted in R v James [1960] 1 WLR 812), the offence was breach of a probation order made in respect of a conviction for vagrancy, carrying a maximum sentence of 3 months' imprisonment. Lord Goddard CJ stated :-

" ... if he goes to Borstal he will probably be detained 15 months, and that is what causes the court to wonder whether Borstal training ought to be imposed on these youths when the maximum sentence of imprisonment they can receive is only one of three months. I dare say it would be very much better that they should go somewhere to be trained, but on the whole we do not think it is a satisfactory sentence because it does...

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