Tam Yee Wah v. The Queen
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CACC000604/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 604 OF 1973 -----------------
----------------- Coram: Pickering J. Date of Judgment: 10th August, 1973 ----------------- JUDGMENT ----------------- 1. This appeal has occasioned me no small degree of anxiety. The appellant is an 18 ½ year-old girl who, in the course of a trial for robbery, changed her plea in the middle of the trial to that of guilty. 2. The facts were that on the 14th of April last in Nathan Road, the appellant, together with two other girls, each of whom was aged 15, accosted two female victims, took them unwillingly along Nathan Road, into another street and thence into a public lavatory where they searched the victims' shopping bags, removed their goods and cash and, in the case of one of the victims, her watch and gold finger ring. A report having been made to the police, the three girls were stopped by a police party within half an hour of the incident. At that time, the appellant was holding the two plastic bags of goods taken from the victims and also held a purse taken from one of the victims; in that purse was the gold ring; the appellant at the time of her arrest was also wearing the stolen wrist-watch. In other words, she had charge of the whole of the goods stolen from the victims. 3. The learned magistrate sentenced all three girls to detention in a training centre. He was of the opinion that the appellant was the leader of this group. Having regard to the very careful analysis of the facts as they emerged in evidence before the change of plea, that analysis having been made this morning by Mr. WOO for the appellant, it may be doubted whether the conclusion that the appellant was the leader is not open to question. It is indisputable, however, that she was the eldest member of the group and she was, at the time of the arrest, the custodian of all the stolen property. 4. Mr. WOO asks that instead of the detention in a training centre, the appellant be put upon probation. It may be asked why she should be so treated when her companions, neither of whom have appealed, have been sentenced to detention in a training centre. Two factors influence me to take the step urged upon me. In so doing, I am not for one moment suggesting that there was anything wrong in principle in the sentence which the learned magistrate imposed upon this appellant. 5. The first factor is to be found in the Probation Officer's reports on all three girls. I have this morning had the advantage of seeing, in the magistrate's original file, not only the Probation Report upon the appellant but those upon her two companions and, it is notable that it was only in the case of the appellant that probation was recommended. In the case of one of the other girls, the Probation Officer said: "It is most doubtful if she will respond well to open supervision" and then went on to make a reluctant offer in these terms:
In the case of the second girl, the Probation Officer said:
In the case of the appellant, the Probation Officer was of the opinion that a term of two years' probation might offer her a chance of diverting herself from further crimes. 6. The second factor which has exercised my mind and has eventually influenced me, is the age of this appellant. This is a certain paradox in her age in that in one sense the fact that she is the eldest of the three girls is to her discredit. In another sense, her age has come to her assistance. She is, as I have said, 18 ½ and, despite that, is still only in Form 2 at school. If her sentence stands, she will be faced with the difficulty of trying to find a place in a school at the age of 19 or more, in Form 3. That would lead to a situation in which she would be 22 or 23 by the time she finished school, even assuming that she could get a place at the age of 19, in Form 3. There is a strong possibility, if not a probability however, that she would fail to get a place so that if the present sentence stands, she may never achieve an acceptable standard of education. A fact of which I am informed this morning, and which was unknown to the learned magistrate, is that her mother has secured a place for her in a school in September of this year. Her educational future, if she is allowed to take up that vacancy, is therefore assured. 7. These educational considerations are not applicable to her two companions: one left school 6 months ago, the other left school as a result of these proceedings but has been informed that on personal application to the principal, she may be allowed to resume her schooling after her detention in the training centre. The effect of an education interrupted by detention in a training centre will be nothing like so great upon her as upon the appellant because that other girl at the age of 15 is already in Form 2, the form in which the appellant finds herself at the age of 18. 8. I do not wish, in any way, to minimize the seriousness of this offence but having regard to the fact that probation was specifically recommended in the case of the appellant and not in the case of the other two girls, and to the drastic effect upon her education which a term in a training centre would have, I allow the appeal and, in place of detention in a training centre, the appellant will be placed upon probation for two years with the special condition that she shall take up only such schooling, employment or residence as shall from time to time be directed by the Probation Officer. Representation: Patrick Woo (Hoosen & Co.) for appellant. Donaldson, C.C., for respondent. |