The Queen v. Choi Kam-lan

HCMA001218/1986

BETWEEN:

Coram: Roberts, C.J.

Date: 17th December, 1986 & 30th December, 1986.

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JUDGMENT

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1. The appellant was born on 31st August, 1970 and was thus just over 16 years of age when she pleaded guilty to two charges of theft, involving the stealing of earrings from two girls on a staircase on 4th September, 1986.

2. The magistrate, after the appellant had pleaded guilty, sent for a probation officer's report, This report, which was presented to the court on 26th September, 1986, though it appears that the defendant was absent on that occasion, as a result of which her bail was estreated and a warrant for her arrest was issued.

3. The magistrate, in view of the critical nature of the probation officer's report, called for a training centre report. This was produced in court on 10th November, when it was read to the appellant, who was asked if she had anything she wished to say, she replied "May I be given a chance, this is my first offence".

4. The magistrate, in his reasons for sentence, records that he discussed the girl with the probation officer in his chambers, in the absence of the appellant, and that the probation officer was adamant that open supervision would not work with the appellant.

5. I accept, of course, that this magistrate, a magistrate of great experience, was doing the best he could to ensure that a proper order was made in relation to the girl. Nevertheless, on reflection, I am sure that he would agree that there are grave dangers in conversations between a magistrate and a probation officer, in the absence of the defendant, before an order is made.

6. However, he did ask the probation officer to repeat her objections in open court, which she did on the 10th November. The substance of them is recorded as follows -

"During enquiries I gained impression that she was deceitful and parents have lost control over her and have locked her in the house. The parents have asked me to get her into a home. She has lied. She has a deep rooted pattern and I doubt if she will be changed. She also lied about the reason for committing this offence."

7. This is very much in accordance with the probation officer's earlier report, which shows that the girl's parents had no confidence that the appellant would reform herself in an open community and that they favoured institutionalization for the girl, as they wanted her to be separated from her undesirable associates.

8. The appellant clearly gave a very bad impression to the probation officer as being unruly, completely out of parental control, having undesirable friends, and displaying a defensive and non-repentant attitude towards the offences to which she pleaded guilty. The probation officer finished her report by saying -

"... it seems more desirable to give Defendant a chance to retreive her past misdeed under institutional care. It is of the opinion that open probation does not help such a deep-rooted delinquent and is not recommended."

9. As I have noted, the magistrate had referred the matter to the Correctional Services Department for a report as to the defendant's suitability for a training centre. The appellant made a very bad impression on the intake officer, who found her taciturn, evasive, insincere and ambiguous and inconsistent in answering questions, with contradictions and discrepancies in the, information that she gave. Although she claimed that she was remorseful, he considered that her sincerity was doubtful. The intake officer added that her parents were too submissive to exercise control and that intensive supervision and guidance were necessary to keep her on the right track.

10. With this sort of background, I was not in the least surprised that the magistrate should have come to the conclusion that a Training Centre Order was appropriate.

11. The only matter which caused me some concern was the following passage, at the end of the statement of findings -

"I felt I had no option but to make a Training Centre Order. I had, and have, some sympathy for her but the system provides no reasonable alternative."

12. I considered the possibility that the magistrate might have overlooked the possibility of sending the girl to reside in one of the approved institutions, appointed under the Probation of Offenders Ordinance, for the reception of parsons required to reside in a specified place as a condition of a probation order.

13. Against that background, I called for a further report from the probation officer as to the possibility of ordering that the appellant should undergo a period of closed probation.

14. The probation officer reiterated her advice that the girl would benefit from education and character building in a more disciplined atmosphere, than was available with her family.

15. She explained that, although there is provision for a form of closed probation for boys between 16 and 21, no such facilities exist for girls after they reach the age of 16, the upper age limit for the Ma Tau Wei Girls' Home.

16. While I realize that there may not be a substantial demand for a residential hostel of that kind for girls between 16 and 21, I hope that the Social Welfare Department will try to provide some such accommodation for errant teenage girls. Otherwise, the courts are sometimes, as in this case, obliged to impose a Training Centre Order when they would prefer to order closed probation.

17. In the light of this information, I agree with the course taken by the magistrate and dismiss the appeal against sentence.

Representation:

Miss Betty Kwan (D.L.A.) for Appellant

Mr. J.M. Gerber, Crown Counsel, for Respondent/Crown Prosecutor.