THE QUEEN v. YIP WAI(F)

IN THE COURT OF APPEAL

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JUDGMENT

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Judgment of the Court delivered by Cons, J.A.:

1. This is an appeal from an order of His Honour Judge Moylan which sentenced the Appellant to detention in a training centre.

2. The Appellant was one of a gang who set up the victim with a view to robbery by her pretending that she was a prostitute who would oblige him, and then at the last minute the gang descended to "rescue" her and rob him of a great deal of cash and property.

3. The Appellant has a clear record. It is clear that she did not have a very satisfactory childhood. Her parents were divorced when she was young, and her natural mother committed suicide in 1980. Her father remarried and the whole family came to Hong Kong when the Appellant was only ten. She is now only fifteen.

4. Academically the Appellant is not very bright. The report from the Aftercare Officer referred to her as "simple-minded". Although she did get through school to Form I, she left school in 1984. Since then she has had a variety of jobs in the electronic world and once as a salesgirl. She did not keep any of them for any substantial length of time and, as so often happens in that case, she fell into bad company.

5. As a result of this offence she was detained for a while in the Ma Tau Wai Girls Home.   Since her release under a Care and Protection Order she has reported regularly and is said to be perceptive to counselling. The Aftercare Officer recommended "stricter discipline and guidance from a professional agent".

6. When setting out his reasons for making the order that he did, the Judge observed that "The age of the Appellant seems not relevant for sentence in relation to the facts of the offence."  While in many crimes of violence the age of the offender is of minimal or no importance, we would not, with every respect to the learned judge, accept that, as far at least as the Appellant is concerned, the present offence fell into that class, being more in the nature of deceit. Bearing in mind also the circumstances we have earlier outlined we do not think that a custodial sentence was justified. We propose instead to put the Appellant on probation for 3 years, a course to which she has given her assent.

7. For these reasons, leave to appeal is granted. We treat the application as the appeal and allow it to the extent we have indicated.