THE QUEEN v. WONG KIN-WA

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J U D G M E N T

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Macdougall J.:

1. The applicant, who hitherto had a clear record, pleaded guilty to a charge of incest with his 13 year- old sister and was sentenced to detention in the Training Centre. It is accepted that there was no coercion exercised in the commission of the offence. Indeed, it did not come to light until the applicant's sister, who had made no complaint to her parents of what had happened, went into labour and was taken to hospital where she gave birth to a baby girl.

2. His Honour Judge Fung called for probation, psychological, and Detention and Training Centre reports. He also had the benefit of a psychiatratic report prepared while the applicant was at Siu Lam Psychiatric Centre prior to trial.

3. The Probation officer's report stated that the applicant, who was 16 years of age at the time of committing the offence, required "a reasonable period of institutionalization with psychological counselling" and that therefore "open probation supervision is considered not expedient and is thus not recommended." It is not clear why this course was proposed other than that the applicant's parents had neglected his sex education and that he had been somewhat spoiled in his upbringing, in the body of his report the Probation Officer embarked on a psychological analysis of the applicant, a task that we think is more appropriate to a psychologist or a psychiatrist. It seems that his conclusions and thus his recommendations were based on this analysis.

4. In the Detention and Training Centre suitability report, the Intake Officer observed that the applicant was receiving support from his family in his determination to reform, and expressed the opinion that a period of disciplinary training would be beneficial.

5. The clinical psychologist from the Correctional Services Department reported that the applicant was quite normal, and had exhibited remorse for what he had done. She suggested that it would be more beneficial to both the applicant and his family for him to be given a non custodial sentence such as probationary supervision coupled with psychotherapy, to assist him in rebuilding his relationship with his family and restoring his self-image.

6. The psychiatrist who interviewed the applicant at Siu Lam Psychiatric Centre was of the view that he was free from any formal mental disorder and that psychiatric intervention was not required. He observed that sex education and counselling would assist the applicant in his future adjustment.

7. It is clear from the Probation Officer's report that since the commission of the offence the applicant and his sister have been able to relate peacefully to each other. All indications from the reports are that the applicant fully realises the error of his behaviour and that it is highly unlikely he will repeat the offence.

8. Counsel has drawn our attention to a passage from Principles of Sentencing by Thomas 2nd edition at page 121 where the author notes that incest between brother and sister is clearly treated as an offence very different from incest between father and daughter. We have no doubt that this is correct.

9. In the unreported case of George in 1971, the Court of Appeal in England varied the sentence of borstal training to probation where a 16 year-old youth had committed incest and had attempted incest with a younger sister sharing the same bedroom.

10. In Winch⁽¹⁾ a suspended sentence of 2 years imprisonment was varied to a conditional discharge in the case of a man aged 33 who had been living with his sister aged 34 as man and wife.

11. Although we have some sympathy for the judge, faced as he was with a probation report in which probation was not recommended, we think that he attached too much weight to it and was unduly influenced by it in arriving at his conclusion as to how best to deal with the applicant.

12. It follows from what the clinical psychologist stated in her report that the applicant would be given psychotherapy treatment and sex education whilst in the Training Centre. This has now been confirmed. Since he has already been detained for six months we think it highly likely that he has now received whatever sex education it had been proposed to give him at the Centre. It is apparent from the reports however that what would be most beneficial to both the applicant and his family as a unit is group psychotherapy treatment. His parents have indicated that they will undergo such treatment with him if he is released.

13. We have come to the conclusion that in the circumstances no useful purpose would be achieved by detaining the applicant any longer in the Training Centre, and that the sooner he is released and makes the necessary adjustment with his family, the better.

14. We, therefore, grant the application allow the appeal and set aside the order for detention in a Training Centre

(1) [1974] Crim L. Rev. 487.