HKSAR v. FUNG HIU CHONG

CACC 200/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 200 OF 2000

(ON APPEAL FROM DCCC NO. 9 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

1. On 26 April 2000, the Applicant was convicted by Judge Wilson in the District Court on charges of blackmail and theft. She had pleaded not guilty. Since she was 17 years old, the judge called for reports on her. When she returned to court on 10 May, the judge sentenced her to detention in a training centre on each of the charges. She applied for leave to appeal against her convictions and sentences.

2. Her application came before the Court of Appeal on 5 September 2000. On that occasion, the court dismissed her application for leave to appeal against her convictions. However, the court regarded her as posing a not altogether straightforward sentencing problem. On the face of it, the nature of the offences which she had committed and her wayward lifestyle strongly favoured her detention in a training centre. On the other hand, she had been about four months pregnant when she was sentenced, and there are no facilities in training centres for mothers to look after their babies. If the orders for her detention in a training centre were upheld, she would have to be separated from her baby.

3. If the Applicant was intending her baby to be cared for by others, so that she and her baby were going to be separated in any event, the orders for her detention in a training centre may well have continued to be appropriate. But if she was intending to care for the baby herself, and if the court in those circumstances did not want her to be separated from her baby, the only viable sentencing options were to convert her sentences to sentences of imprisonment or to place her on probation. We therefore called for a further report on her to provide us with up-to-date information (a) as to whether she intended to care for her baby herself, and (b) as to whether her insight into her behaviour had improved to such an extent as to enable probation to provide her with the counselling which she needs to lead a productive and crime-free life. We wanted the adjourned hearing to take place as soon after 3 October as possible.

4. Although further reports had been prepared by 3 October, it was not possible to obtain an early date for the adjourned hearing. What has happened since the last hearing is that on 23 September the Applicant gave birth to her baby. She wanted to care for the baby herself, but she did not want her baby to be brought up in prison. She was therefore not transferred to a women's prison. Instead, she remained in the training centre, and her baby is currently being cared for in a residential care centre. It has not been possible, therefore, for the separation of mother and baby to be avoided for the last three months or so.

5. Apart from the physical separation of mother and baby over the past few months, there is a practical problem about putting the Applicant on probation now. The probation officer takes the view that the Applicant is too young to care for her baby without her parents' help and support. However, her parents themselves have expressed reservations about the Applicant and her baby living with them now. They think that the Applicant needs time to mature, and they want the Applicant to continue her training in a training centre. At any rate, that was their position a few months ago when the reports were prepared. Indeed, that is supported by the views of the welfare officer at the training centre at which the Applicant is detained. We do not have her up-to-date views, but a few months ago she was saying that the Applicant had been progressing satisfactorily.

6. Since the Applicant herself is opposed to her baby being cared for in prison, the possibility of converting her sentences to ones of imprisonment is no longer a viable option. Moreover, the fact that the Applicant has been separated from her baby for the past few months, coupled with the practical problems of placing the Applicant on probation now, have persuaded us that, in the final analysis and in the light of what has occurred since the judge passed sentence, the most appropriate sentence for the Applicant continues to be detention in a training centre. For these reasons, therefore, her application for leave to appeal against her sentences must be dismissed.