The Queen v. Wan Yuen-yee

HCMA000093/1984

BETWEEN

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Coram: Barnes, J. in Court.

Date: 22nd March, 1984.

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JUDGMENT

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1. On 18.9.83 the Appellant's 13-year-old brother stole, among other things, a lady's Rolex wrist watch from the house of a neighbourhood family. On returning home he gave the watch to the Appellant who was then a 14-year-old schoolgirl and part-time waitress at a McDonald's hamburger shop. She in turn sold the watch for $2,900. She deposited the money to the credit of her savings account.

2. Her brother was. arrested in connection with the burglary on 27.9.83. On 3.10.83 the Appellant, having repurchased the watch for $2,900, took it to a police station and handed it over to the police officers who were investigating the burglary. She was then charged with "Handling stolen goods contrary to section 24(2) of the Theft Ordinance". She appeared in the Magistrates Court on 23.12.83 and pleaded guilty. Following that plea she admitted the truth of a statement of facts which, inter alia, alleged that she knew that the watch had been stolen at the time she received it.

3. Although the learned magistrate was informed that she was aged 14, that she had a clear record and was still attending school, he nevertheless remanded her in custody for 14 days so that he. could obtain a training centre suitability report as well as a probation report.

4. On 30.12.83 she was before the. learned magistrate again, presumably pursuant to an application for review. During this hearing her legal representative indicated that he might apply "!for a change of plea". The hearing was then adjourned to 3.1.84. On that day her legal representative did apply to the magistrate to allow her to change her plea to one of not guilty on several grounds. One of those grounds was that she did not, at the time of her plea, "appreciate the ingredients of the offence".

5. The magistrate's note of how her plea was taken on 23.12.83, when she appeared together with other defendants charged with the burglary offence, is as follows: -

6. "Charges read and explained to defendants".

The charge which was "read and explained" to her was in the following form:-

"(C) Handling Stolen Goods (Vs. D5 only) Contrary to Section 24(2) of the Theft Ordinance, Cap. 210, Laws of Hong Kong.

WAN Yuen-yee, you are charged that on the 18th day of September, 1983 at Block A, 260 Lockhart Road, 6th floor, Wanchai, in this Colony, handle a 'Rolex' wrist watch set with four diamonds, the property of LEUNG Pui-chun, knowing or believing the same to have been stolen."

No doubt that charge was meant to allege that she had committed that form of Handling of which the ingredients are---

dishonestly receiving stolen goods knowing or receiving stolen goods knowing or believing them to be stolen.

The charge which was "read and explained" to her omitted one of those ingredients, namely, the ingredient of "dishonestly". On the face of the record it is difficult to see therefore how the learned magistrate could have been satisfied that she pleaded guilty with full knowledge of the ingredients of the offence she was alleged to have committed. By some means not disclosed on the record he was able to overcome the difficulty and "decline to exercise discretion in her favour".

7. On 6.1.84 she was back before the magistrate who now had before him the two reports he had called for. The probation officer recommended a probation order with a condition of residence at Ma Tau Wai Girls' Home for a period of nine months. The Intake Officer of Tai Tam Correctional Institution who prepared the training centre background report concluded that "close supervision with guidance should be beneficial to her in establishing a right attitude to life". She was found to be "mentally and physically suitable for detention in a training centre".

8. Although the probation report stated that "she alleged regret for her greediness" and the Intake Officer reported that she "felt remorseful and sorry about her wrong-doing", the learned magistrate "did not accept that she was genuinely remorseful". He went on to say that "the probation report was support for that view" and the part of the report to which he referred as supporting it is the part I have just quoted, namely, "she alleged regret for her greediness"! He ordered that she be detained in a training centre.

9. The Appellant has appealed against that sentence on the grounds ---

10. That the learned Magistrate erred in:

(1)	not giving sufficient consideration and/or weight to the fact that the Appellant had co-operated with the Police by voluntarily surrendering and handing in the watch the subject matter of the charge to the Police when the Learned Magistrate considered the question whether the Appellant was genuinely remorseful;
(2)	not giving sufficient consideration and/or weight to paragraph 5 of the Training Center Suitability Report (prepared by Ho Kar Yuk Intake Officer of Tai Lam Gap Correctional Institution) when the Learned Magistrate considered whether the Appellant was genuinely remorseful;
(3)	concluding that paragraph 6 of the Probation Report (prepared by Mrs. CHAN MOK Shui-king Probation Officer) supported the Learned Magistrate's view that the Appellant was not genuinely remorseful;
(4)	giving undue weight to the over-permissiveness of the Appellant's mother when the Learned Magistrate decided to send the Appellant to Training Center;
(5)	concluding that the offence of which the Appellant was convicted was not a once-in-a-life-time mistake;
(6)	not giving sufficient consideration and/or weight to the recommendation of the Probation Report (prepared by Mrs. CHAN MOK Shui-king Probation Officer);
(7)	not giving sufficient consideration and/or weight to the fact that the Training Center Report (prepared by Ho Kar-yuk Intake Officer of Tai Tam Gap Correctional Institution) was prepared under the erroneous information that the Appellant was convicted of Burglary whereas in fact the Appellant was convicted of Handling Stolen Goods;
(8)	concluding that the most appropriate way to rehabilitate the Appellant was detention in a Training Center.

11. I have not referred to every "error" the learned magistrate allegedly made but the Appellant's counsel has satisfied me that he did make the "errors" alleged. The sentence, in relation to this offence and this offender, was wrong in principle and cannot be allowed to stand.

12. I allow. the appeal. The magistrate's order that, she be detained in a training centre is. quashed. In lieu of that order I shall make, if the Appellant consents, a probation order for a period of 18 months from today.

Representation:

Mr. M. Hartmann, Crown Counsel, for the Crown.

Mr. LUI Kit-ling instructed by Messrs. Foo & Li for the Appellant.