Tam Sau Fun v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 228 OF 1973

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JUDGMENT

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1.  This appeal has caused me a great deal of anxiety and the fact that I propose to vary the sentence is intended in no way as a reflection on the learned magistrate who imposed it.

2.  The appellant pleaded guilty to participation in a lift robbery.  She is a girl of 14 years of age and together with two other girls she entered a lift in which there was a young lady of about 20.  It was then after 11.00 p.m. on the 14th of January 1973.  The appellant despite her young age is of a good physique and threw her arms around the neck of the victim while the other girls took her handbag.  The other girls were aged 17.  No knife or other weapon was used.

3.  The learned magistrate before whom the plea was taken subsequently went on leave. Prior to doing so however she ordered a probation officer’s report and a report from the training centre.  The appellant was found suitable for the training centre although apparently the training centre authorities in view of her age were somewhat reluctant to accept her.  The probation officer gave the conscientious and full report that we are accustomed to receiving from our probation officers and concluded that in view of the serious nature of this offence and that the fact that the appellant’s parents did not seem to be capable of rendering complete control over her the appellant did not appear to be a very suitable case for probation.  It should be noted that she does not say that she considered her to be a very unsuitable case for probation.

4.  I have had the advantage today of seeing the appellant’s mother in chambers.  She tells me that she is prepared to give up her job and to devote her time to overseeing the behaviour of the appellant.  She has been enabled to do so by an increase in the earning capacity of another child of the marriage.  I have further had an opportunity of a discussion of the case with a senior probation officer.  I believe that there is a chance that this girl may be saved from the bad company into which she has fallen without a custodial sentence being imposed.  I have arrived at this conclusion not only from a careful consideration of the probation officer’s report already available but also from a consideration of the additional information not then available to the learned magistrate given to me by the appellant’s mother.

5.  The appellant it is clear must be made to realise the seriousness of this offence. I propose to effect this by putting her on probation subject to the most stringent conditions.  The first of these conditions is that she will reside with her mother or in such other place as the probation officer may from time to time direct.  The second is that she will be indoors every night not later than 9.00 p.m. unless with the express permission of the probation officer. The third condition is that throughout the period of probation she will attend at such school or place of employment as the probation officer may from time to time direct.  The fourth is that she will not during the period of probation associate with any companions of whom the probation officer may disapprove.  The probation period shall be one of two years.

6.  This appeal is therefore to that extent allowed.

Appellant in person.

Duckett, S.C.C. for the Crown/Respondent.