So Kei Ming v. The Queen

CACC000381/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 381 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 11 August 1970

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JUDGMENT

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1. The appellant, who is aged 18, pleaded guilty to four charges of carnal knowledge of a girl between the ages of 13 and 16 years. The girl was in fact 14 years and 7 months old at the material time. He was ordered by the magistrate to be sent to, and detained at, a training centre. With respect to the learned magistrate I am of the opinion that that order, in the circumstances of this case, was wrong in principle.

2. The facts of the case were that the parents of the appellant and the girl were neighbours. On the 10th May the girl, who was apparently then employed at a wig making factory, under the excuse of going to collect her wages, left her home. She did not return. The police were informed the following day. On the 15th May the boy's mother came to the house of the girl's mother and said that the appellant would like to meet the mother and discuss the matter. The girl's mother then went to the premises of the boy's mother and there she saw both the boy and the girl. It would seem abundantly clear that the girl was only too willing to be, and remain, in the company of the boy and, indeed, the boy's mother. On inquiries being made the girl finally and reluctantly admitted that the boy had had intercourse with her on a number of occasions. The boy himself subsequontly admitted sexual intercourse and, as a consequence, was charged with the offence.

3. The boy, at the time, was on a bond to be of good behaviour, having been placed on that bond for a period of 18 months as a result of an offence committed by him on the 17th February of this year. It is also true to say that he had a previous conviction for simple larceny in respect of which he was convicted in March 1968 and put on a bond to be of good behaviour for a period of 12 months. The two offences in respect of which the appellant admitted, were both of an entirely different character.

4. A probation officer's report was before the learned magistrate and it is true to say that the report is one which is not favourable to the appellant. The probation officer complains that although for the first two months period of probation the appellant appeared to behave himself, subsequently the probation officer lost contact with him and the appellant did not report to him when he was required to do so but simply telephoned to him making excuses for not coming to see him. It should be made abundantly clear that if probation officers are not satisfied with the conduct of a particular person placed on probation the proper course to take is to report the matter to the magistrate and bring the person on probation before the magistrate. The magistrate can then warn the person on probation to behave more properly in the future or, alternatively, discharge the probation order and deal with the offender as for the original offence. It is, in my view, thoroughly unsatisfactory for a probation officer to complain in his report that a person placed on probation has not properly complied with the terms of the probation order. The responsibility, and the remedy, lie in the probation officer's own hands.

5. I have no hesitation in holding that, having regard to the nature of the offence committed here and the relationship between this boy and the girl, that this was not a case in which a training centre order should have been made. I appreciate that in making that order the magistrate, to some extent, was influenced by the possibility that the boy might continue to see the girl and possibly commit further offences of a similar nature. That is a matter which, at any rate to some extent, can be avoided by the terms of probation order which I now propose to make.

6. The appeal will be allowed, the order for detention set aside, and in lieu thereof I direct that the probation order made on the 17th February, 1970, will continue and remain in force. However, I make it a further condition of that order that the appellant will not see, or attempt to see, or have anything to do with, the girl in question, LAI Lan, without the express consent of that girl's own parents, communicated to him by the probation officer under whose supervision he will be. I propose to warn the appellant that if he should fail to comply with this particular provision of the probation order the matter will be reported to me and the appellant will then again come before me for punishment for the original offences committed by him.