Case Commentary

Criminal Law – Court of Appeal clarifies principles on care and protection orders in sentencing juvenile offenders

The Court of Appeal decided that a custodial sentence would not be appropriate, and sentenced the 1st and 2nd Respondents to 12 months’ probation and 80 hours of community service respectively.


Secretary for Justice v CMT and YYH

   
Reference:     [2020] HKCA 939
   
Court:        Court of Appeal
Before:       Hon Poon CJHC, Chu and Pang JJA
Dates of Judgment:   30 October and 13 November 2020
Appearance:   Hectar Pun SC, leading Jason Ko, for the 1st Respondent
   

Overview

The Secretary for Justice made an application for sentence review against the Magistrate’s dismissal of the charge of unlawful assembly (“Dismissal Orders”) and the imposition of care and protection orders (“CP Orders”). After balancing all relevant factors, the Court of Appeal (“CA”) decided that a custodial sentence would not be appropriate, and sentenced the 1st and 2nd Respondents to 12 months’ probation and 80 hours of community service respectively.

Background

The 1st and 2nd Respondents in this case were aged 14 years 10 months old and 14 years 1 month old respectively at the time of the offence. The unlawful assembly in question took place on 18 November 2019 and involved about 100 protestors.

Permanent Magistrate Ho Chun Yiu took the view that both Respondents remained relatively passive in the assembly, without engaging in or encouraging any violence. His Worship made the Dismissal Orders and the CP Orders against both Respondents.

The Secretary for Justice contended that the sentences were wrong in principle and/or manifestly inadequate, that the Magistrate accorded insufficient weight to the factors of punishment and deterrence, and that the Magistrate underjudged the culpability of the Respondents.

Proper Sentencing Approach

The CA held that before a juvenile court decides to make a CP Order, it must first consider the threshold question of whether the offender is in need of care and protection within the meaning of section 34(2) of the Protection of Children and Juveniles Ordinance (Cap 213):

“(2) For the purposes of this Ordinance, a child or juvenile in need of care or protection means a child or juvenile —

(a) who has been or is being assaulted, ill-treated, neglected or sexually abused; or

(b) whose health, development or welfare has been or is being neglected or avoidably impaired; or

(c) whose health, development or welfare appears likely to be neglected or avoidably impaired; or

(d) who is beyond control, to the extent that harm may be caused to him or to others,

and who requires care or protection.”

Hence, where counsel advocates or a probation officer considers a CP Order is appropriate, he should provide the necessary assistance to the court, including indicating how the statutory criteria under section 34(2) is met in the circumstances of the case. It would not be sufficient to proceed simply on the basis that the offender needs care and protection in a general or loose sense: see CA Judgment at §27.

Adopting the general approach to sentencing juvenile offenders as set out in Secretary for Justice v SWS [2020] HKCA 788*, the CA held that appropriate weight must be given to the sentencing factors of punishment, deterrence and condemnation despite their youth: see CA Judgment at §§39-40.

However, the CA also recognized that both Respondents were of extreme youth at the time of the offence, that they were both genuinely remorseful, and that the 1st Respondent suffered from a history of mental health problems, which might significantly deteriorate if a harsh sentence were to be imposed on her: see CA Judgment at §§49-51.

After balancing all relevant sentencing factors, the CA took the view that the appropriate sentence must have a sufficient punitive element and deterrence, while at the same time take care of the Respondents’ rehabilitation and well-being: see CA Judgment at §52.

The CA’s Sentencing

Whilst setting aside both the Dismissal Orders and the CP Orders, the CA expressly referred to section 11(2) of the Juvenile Offenders Ordinance (Cap 226) (which provides that “no young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way”) and refused to impose immediate custodial sentence on the Respondents: see CA Judgment at §61.

Having considered the suitability reports, the CA imposed a 12-month probation order on the 1st Respondent with special conditions, and a 80-hour community service order on the 2nd Respondent with special conditions.

Representation:

Hectar Pun SC, leading Jason Ko, acted for the 1st Respondent in Secretary for Justice v CMT and YYH [2020] HKCA 939.

*Ted Chan (with Mr Dick Lee) acted for the Respondent in Secretary for Justice v SWS [2020] HKCA 788.


Hectar Pun SC

Hectar was called to the Bar in 1995 and appointed Senior Counsel in 2015. His practice spans many areas including constitutional and administrative law, human rights law, immigration law, criminal law, land law, company law and commercial law. He appears regularly on behalf of applicants in major judicial review proceedings.

Recently, Hectar acted for the successful applicant in Chan Kung Shun and Others v. Commissioner of Police (19/11/2020, HCAL 2703/2019) [2020] HKCFI 2882, where the High Court ruled that the failure of police officers to display unique identification and the lack of an independent police complaints mechanism violate the Hong Kong Bill of Rights.


 
Jason Ko


Jason
joined Chambers in 2019 and is developing a broad civil practice and accepts instructions in all areas of Chambers’ work. A seasoned mooter during his studies, Jason has represented the University of Hong Kong in the Philip C. Jessup International Law Moot Court Competition (2018), where his team won the Hong Kong Champion and he was ranked among the top 100 oralists internationally.

Recently, Jason (with Mr Ernest CY Ng) acted for the Applicant in 郭卓堅及另一人 v. 保安局局長李家超及另一人 (19/11/2020, HCAL1753/2019) [2020] HKCFI 2882, one of several judicial review applications related to the failure of police officers to display unique identification markings during anti-extradition bill protest operations, which was held to contravene the Hong Kong Bill of Rights.

Ted Chan


Ted was called to the Bar in 2019 and is developing a broad civil and criminal practice. He has appeared in the High Court, the District Court (including the Family Court) and the Magistrates’ Court (including the Juvenile Court). Recently, he acted (with Mr Dick Lee) for the Respondent in Secretary for Justice v SWS [2020] HKCA 788, where the Court of Appeal set out the general approach to sentencing juvenile offenders.

Ted is also a law reporter for the Hong Kong Court of Final Appeal Reports (HKCFAR) and the Hong Kong Law Reports & Digest (HKLRD). From 2017 to 2018, Ted was appointed as a Judicial Assistant in the Court of Final Appeal.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case.