TSANG KIT YEE v. R.

1996, No.189
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, V.-P. (Giving the Judgment of the Court) :

1. The applicant Tsang Kit Yee pleaded guilty to unlawful wounding before HH Judge Caird in the District Court on 28th March this year. She was convicted and sentenced to detention in a training centre. She now applies for leave to appeal against that sentence and asks for a reduction or to be freed from detention.

2. The facts are as follows. It was a bad case of baby battering. The father of the 6 month old baby girl involved was going to Mainland China for 5 weeks. The mother was in prison. The father left the baby with Tsang on 4th March this year. Tsang was to look after the baby for $4,000 during the period of the father's absence. She took it to the room at Butterfly Estate in Tuen Mun which she shared with her boyfriend Chan Wai Chung, who was dealt with by this Court earlier today and had his sentence increased from 10 to 15 months. When the father returned on 13th April this year, he found the baby's left arm swollen. Medical examinations revealed multiple injuries and fractures at different places and that had been inflicted at different times. The applicant and Chan admitted that they had each picked up the baby and thrown it several times on the sofa. In addition, Chan admitted that he had beaten the baby.

3. The judge, very properly, called for reports from the Probation Service, and also from the Commissioner of Correctional Services as to suitability for detention in a training centre.

4. The Probation Officer's Report and Supplementary Report revealed weak character, manifested in unsatisfactory conduct, frequent truancy and behaviour problems at school, from which Tsang dropped out at the age of 15. That was then followed by a period of unstable work pattern and undesirable associations. With reference to the offence, the reports concluded in this way :

" ... Her inexperience in babysitting could be understood, but her sense of responsibility on bearing the consequence of her act seemed to be weak. In view of the nature of the offence and her attitude, open probation supervision seems to be not an effective measure for the Accused's reform which is therefore not recommended."

5. The Correctional Services' Report also indicated a weak character, but it was pointed out not wicked in nature and, with reference to the offence, that being immature, Tsang had not considered the consequence of her acts. She appeared genuinely remorseful and had apologised to and been forgiven by the parents of the baby. She also acknowledged to the officers of the Correctional Services Department making the report the love and concern her parents had for her. The report went on to say that :

" While on remand, TSANG managed to behave herself and was able to comply with the institutional rules and regulations."

The report of the Correctional Services officer concluded :

" In the interest of her reformation, I am of the opinion that she may stand a chance of success in turning over a new leaf of life if given due and adequate social intervention. In this light, a course of disciplinary training coupled with a period of after-care supervision would be deemed expedient for her rectification."

The Commissioner considered that Tsang was suitable for detention in a training centre and in that context, confirmed that she was mentally and physically fit.

6. In her home-made grounds in support of her application for leave to appeal, Tsang said this :

" ... I apply to have a reduction in the sentence as this was the first time that I committed the offence. I feel that the sentence was too heavy. I hope the Judge would give me a chance and pass a lenient sentence and to allow my appeal."

7. Before us today, she has emphasised her remorse, the benefit she is gained in the three months she has been in detention in a training centre, and how she now realises her responsibilities. She asks to be in effect released so that she does not have to lose 2 or 3 years' freedom. She asks also that consideration be given to her parents, a mother who is about 60 and ill and a father who is 50 years old or so. I should also mention that the father of the infant who was injured appeared in Court and somewhat unusually intervened and said that the baby is now alright and that he would like Tsang to be given a chance.

8. However, the offence is a serious one. We have already said that earlier today we increased the sentence of the co-defendant. Once the Probation Services reckoned that they could not recommend her for probation, virtually, the only option was then to send her for a period of detention in a training centre. The purpose of that is to give disciplinary training. Now that period of detention cannot, under the law, be less than 6 months nor can it be more than 3 years. It is the possibility of detention for 3 years that, of course, upsets a lot of young persons who are sentenced to detention in a training centre; but it does not mean that they remain there for 3 years. The Commissioner for Correctional Services has a discretion to release them early and there is every prospect that if the applicant makes good progress there - and she had impressed us with her remorse and her statements of responsibility and reformation - that she will be released early.

9. It remains to say that the judge's sentence was clearly not wrong in principle nor was it manifestly excessive. On the contrary, it appears to have been the right sentence. There is no ground for interfering and the application is refused.