The Queen v. Tsang Yee Ling

CAAR000016/1984

BETWEEN

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Coram: Roberts, C. J., McMullin, V.-P. & Silke, J. A.

Date of Hearing: 14 December 1984

Date of Judgment: 14 December 1984

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JUDGMENT

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Silke, J. A.:

1. This is an application by the Attorney General to review a sentence - a sentence being one of probation - passed, by a Judge of the District Court after trial, upon a girl of sixteen years and four months for the offence of wounding with intent, contrary to section 17 of the Offences Against the Person Ordinance.

2. The grounds are that the sentence imposed is manifestly inadequate and wrong in principle. The background was that the girl had Met with and become influenced by one DPC HAU Chan-choi. She had met him at the end of May 1984 when he had been separated from his girlfriend. He had not taken kindly to that separation and had threatened that girlfriend.

3. At his instigation, and influenced by infatuation and the persuasion of an older man rather than fear, the respondent went to the place of work of the 20 year old girlfriend on the 2nd June 1984 and poured over her boiling water. She was driven there by the 2nd defendant, with whom she was jointly charged, and by HAU. Subsequent to this HAU committed suicide.

4. The injuries caused to the victim were severe. We have seen photographs which were also before the trial judge. The victim in evidence said that she was still having treatment and she thought that she would be permanently scarred.

5. In relation to that, we reiterate that which was said by another Division of this Court in The Queen v. LUI Hin-kwong⁽¹⁾ that it is important in these cases that there be proper medical evidence. It is important from the point of view of the prosecution and is equally important that the trial judge has it in order to assist him in assessing the sentence he should pass. Unfortunately there was a singular absence of full medical reports here.

6. The 2nd defendant, who assisted in the offence, was sentenced to six months' imprisonment. He was a male of twenty seven.

7. It has been submitted to us by Mr. Payne that the trial judge considered this matter fully; that he exercised  his discretion and decided that in all the circumstances, in particular in relation to the age of the girl, probation was a proper sentence. We accept that the trial judge did give considerable thought to the course he should take. In the course of his reasons he said this:

"I felt that this girl could emerge from a training centre with more than a mere 'socialized disturbance of conduct',"- (that phrase came from the psychiatric report he had in front of him) - "and end up as even more of a menace than she already is. On the other hand, if she is seen and supervised, and offered some kindly and sensible advice, there is some chance that she won't be heard from again." (Emphasis added)

8. In the course of this hearing we have had the benefit of oral evidence from the probation officer who is in charge of the girl. The probation order has been in effect for only eight weeks and while the probation officer did not think that the girl's behaviour under it to be fully satisfactory she has not told us of anything to her great discredit.

9. This was a very serious offence both of its nature and in its consequences to the unfortunate victim. The girl has had a poor family supervision up to date and while the family might, now that she is in serious trouble, take a greater interest, it does not seem to us that the nature of their supervision will ensure that this girl avoids trouble in the future.

10. We have been referred to previous cases in which varying types of sentences were imposed for this offence. They are not, and Mr. Longley, I think, accepts this, of very great assistance to us in considering whether or not here the sentence is a proper one.

11. It has been suggested that, instead of considering a choice as between probation and Training Centre, the trial judge should have considered only imprisonment. With that we do not agree because of the age of the girl and of the influence which was clearly placed upon her.

12. We think that it will be for her benefit if she does get disciplinary training and, if for her benefit, it will also be for the benefit of society at large. We are conscious of the fact that, as Mr. Payne has forcefully submitted, she has been on probation for a period of time since conviction and sentence and that if that is now removed it might have a psychologically deleterious effect. But the abhorrence of society for an offence of this nature, a deliberate disfiguring - must also be reflected in the sentence which is passed.

13. We think that Training Centre is, both for the girl and for her future and in relation to the serious nature of this offence, the proper sentence. The choice of the Judge, with respect to him, was not as between Training Centre and probation but as between imprisonment and Training Centre.

14. We allow the application and direct that the sentence be altered to that of Training Centre. How long it will be necessary for the girl to remain in the Training Centre will be a matter for herself because the better she behaves and the better a manner in which she accepts that sentence and benefits from it, which we hope she will do, the sooner she will be released.

(1)    Criminal Appeal 417 of 1984

Representation:

P.K.M. Longley, Esq. for Crown/Applicant.

I. Payne, Eaq. assigned by DLA for Respondent.