HKSAR v. Wan Yuen-fan

CACC000304/1997

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Coram: Hon Nazareth V-P, Mayo JA and Cheung J in Court

Date of Hearing: 18 September 1997

Date of Judgment: 18 September 1997

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JUDGMENT

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Nazareth V-P (giving the judgment of the Court):

1. On 5th May 1997 the applicant, Wan Yuen-fan and a co-defendant, one Tsoi Kin-wa, her boyfriend, pleaded guilty before His Honour Judge Jackson in the District Court to one court of robbery and one court of false imprisonment. The victim was the applicant's mother. Tsoi was sentenced to imprisonment for terms of 4 years and 2 years for those offences, to run concurrently. The applicant was ultimately sentenced on 28th May to detention in a training centre. She now seeks leave from this Court to appeal against that sentence.

2. Her only ground of appeal is that 3 years in a training centre is too heavy and too long. She adds to that before us today that she would like to go home and asks if the Court cannot reduce the period of 3 years.

3. We turn to the facts which were admitted by both Taoi and the applicant. The judge rightly characterised them as bizarre and extremely worrying.

4. At the time of the offences, the applicant was about 16 years of age. She is said to be now about 17. She lived with her mother, an elder brother aged about 19 and a younger sister aged about 12. Unlike the applicant, the brother and the younger sister are mentally retarded. Their father deserted their mother some years ago. Relation between the applicant and her mother had been very difficult for a long time because of the applicant's bad behaviour. Matters were even worse on the night of the offence because her mother objected to her bringing her boyfriend into the home to sleep overnight. The applicant left saying she would fetch two persons to beat up her mother. Shortly after that, the applicant returned with her boyfriend Tsoi and another male. The three of them proceeded to assault, threaten, gag, tie up and rob the applicant's mother. The applicant herself hit her mother with a hose pipe she had brought along when she returned proclaming that it served her right. It was she who tied up her mother, assisted by Tsoi. A blanket was placed over the mother and from her mother's person a gold necklace, earrings and a gold finger-ring were removed. The flat was ransacked. The mother was repeatedly assaulted. The two males then went out and returned with potato chips which they proceeded to eat while watching a video. The two males each later had a bath.

5. Prompted by his mother, the applicant's brother, who is unable to speak because of a childhood accident, escaped and went to the police. His absence was noticed and the applicant and the two males retreated into the mother's bedroom.

6. The police arrived and the mother shouted for help. The police forced their way in and untied the mother.

7. Meanwhile the applicant and the two males grabbed the younger sister. The blade of a small saw was placed against her neck. She was pulled into the bedroom and the door was locked.

8. The police broke open the door and found Tsoi holding a screwdriver to the applicant's neck. The police retreated and following negotiations, the younger sister was released and the two males arrested, as was the applicant later at the police station when her part became clear.

9. The mother was taken for a medical examination and found to be bruised over her forehead, right arm and both legs. She also had rope marks over both arms and legs.

10. In the course of the incident, $1,300 in cash was stolen from a locked drawer in the mother's bedroom. Some of this was found in the applicant's bedroom.

11. At the time of the trial, the applicant was subject to a care and protection order which resulted from her assaulting a woman police officer by biting her when she was being escorted in connection with proceedings concerned with the two offences here.

12. The judge was concerned by the applicant's age and the circumstances and asked for reports as to her suitability for a training centre order.

13. Four detailed reports were received by him, running to some 20 pages of typescript. They included a Probation Officer's report, a psychological report, a psychiatric report, a medical examination report and a training centre suitability report. The training centre suitability report concluded that the applicant was not suitable for detention in a training centre. The reports reveal a long history of trouble the applicant had caused. She was delinquent, disobedient, became promiscuous and dropped out of school and was not able to hold down a job besides being extremely difficult to her mother.

14. Notwithstanding the training centre suitability report, the judge was rightly concerned about sending to prison someone so young. That seemed to be the only option before him. He therefore called for a re-consideration of the training centre suitability report. The applicant was again examined by clinical psychologists. The recommendation was re-considered. This time the applicant was held to be suitable for a training centre programme. The judge accordingly made such an order.

15. It is quite clear that the judge was right in doing so. We would share his reservations about sending this girl of 16 or 17 to prison in the particular circumstances. We think he was right in sending her to a training centre.

16. The only ground of appeal by the applicant is that 3 years is too long. No period was specified by the judge. It would not have been right to do so under the relevant Ordinance. If someone is sent to a training centre, he remains there until those running the programme consider the person sentenced suitable for release. The judge explained this, telling the applicant that how long she would remain in the training centre was very much up to her. We would add that if she responds to her training and is considered suitable for release, she can be released any time after 6 months.

17. We accordingly refuse her application for leave to appeal.

Representation:

Mr Robert S.K. Lee (SADPP(Atg))(DPP) for the Respondent

Applicant in person