THE QUEEN v. SO LAI SHAN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 747 of 1992

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J U D G M E N T

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1. Kong Suet Man, a girl of some 17 years of age, was arrested on 29th May in connection with an attempted burglary the previous evening. Interviewed at the police station in the presence of her mother, she admitted to be one of two look-outs for those who were actually responsible.

2. She was brought before the magistrate on 2nd June where she declined the services of a duty lawyer and she was remanded on bail after the charge of attempted burglary had been read and explained to her. She appeared again in the magistracy on 17th June but again declined the services of the duty lawyer. When charged with attempted burglary she said “I admit” and in mitigation merely asked that no conviction be recorded. The magistrate observed that he had in mind a custodial sentence to which the defendant merely added that she would like leniency. Her mother, who was also present, asked for a chance for her daughter saying that she was an estate agent and was only helping a friend. She was remanded in custody for probation and training centre reports.

3. She appeared again before the magistrate on 1st July when the reports had been submitted. On this occasion she was represented by a duty lawyer who said that he had seen the reports, which were certainly not favourable, pointed out that the defendant had a clear record and added that she was simply a look-out taking part out of misguided loyalty to her friends. The magistrate ordered that she be sent to a training centre.

4. On 9th July an application was made by Mr. Macrae on her behalf asking that the plea of guilty be set aside on the ground that the defendant only pleaded guilty because the police officer had persuaded her to do so by a number of inducements. The magistrate was unable to deal with the application at that time or for a few weeks to follow. So he released her on bail.

5. The hearing was resumed on 2nd September and Mr. Macrae called both the daughter and the mother to give evidence. Their testimony was to the effect that the officer had stressed that all the other three defendants implicated the defendant, that it was in any event a small matter and at the most the defendant would be bound over if she admitted. The mother also encouraged the daughter to admit because she was not feeling well and wished to get away from the police station. The inspector appearing then for the Crown declined to call the officer in question although that officer was present. But in effect the inspector offered him for cross-examination. The magistrate, in a reasoned ruling after a short adjournment, rejected the suggestions of inducement saying in conclusion that:

“In all the circumstances I can find nothing in the case that causes me to doubt that the defendant’s plea was genuine and voluntary and I refuse the application.”

6. In this appeal today Mr. Macrae submits that the only evidence against the defendant would have been her confession to the police officer and thus that the confession was inextricably tied up with the plea. The magistrate should have been extremely careful therefore before finding that the plea had been unequivocal. By this I understand Mr. Macrae to mean that the magistrate should either have called the officer himself or, in the absence of doing so, should inevitably have accepted the evidence of the mother and daughter. He has referred me to the comments of the then Chief Justice in The Queen v. Chan Kam Tai, Mag. App. 411 of 1984 unreported 1st August 1984, where on a similar occasion to set aside a plea of guilty, he had remarked that:

“Where such allegations are made, the correct course is for the magistrate to take evidence or oath from the defendant and from the officer against whom such allegations are made.”

That was a case where the magistrate heard no evidence at all and I do not read the words of the then Chief Justice in that context as requiring a magistrate to insist on the officer’s giving evidence when counsel appearing for the defendant does not take up the offer of cross-examination. Mr. Macrae has explained to me why he did not do so in the circumstances but the fact remains that the officer was not cross-examined, although the opportunity was there. In my view there is then no duty upon the magistrate to go further than he actually did, i.e. to make up his mind in the position in which he has been left. He was not bound to accept the evidence of the mother and daughter merely because the officer had not given evidence to the contrary. He was entitled to put their evidence, as he did, in the context of what had gone before. He found that evidence wanting in the balance and that must be the end of the matter.

7. So far as this appeal is in relation to conviction it must be dismissed and I shall be pleased to hear counsel and Miss So Lai Shan, who is the other defendant and also appeals against sentence, in that respect.

8. (after further submissions)

9. These two appellants, Miss So Lai Shan and Miss Kong Suet Man, being aged 18 and 17 respectively, were sentenced to a training centre as a result of a burglary which Miss So Lai Shan and one young man were attempting to commit while Kong Suet Man and another young man were acting as look-outs. It failed because when the first two were prising open the door of the shop an alarm was set off which eventually brought the police to the premises.

10. Mr. Macrae, who appears for Kong Suet Man, has pointed out that the two young men appear to have fared much better in the long run, in that one of them was subsequently sentenced to probation and the other was sent only to a detention centre. He suggests that the girls feel it unfair that facilities are not the same for both cases. It is possible to appreciate that view but it cannot affect the courts in deciding what is the most appropriate sentence of those available to the court.

11. In this instance it was inevitably a choice between probation or detention in a training centre. The magistrate had reports for both. As far as So Lai Shan is concerned quite clearly the only suitable order was for the training centre and there is no reason for this court to interfere with that order.

12. At the time the order for Kong Suet Man was made the position was the same. But I am told by counsel that the family circumstances which the probation officer then took into account and made known to the magistrate have considerably changed. I think it is, therefore, a possibility, although I put it no higher than that, that some variation could be made. But in order to see whether a variation is justified it is necessary to have a further report from the probation officer. Therefore, although the appeal, as far as So Lai Shan is concerned, is dismissed, I shall adjourn the appeal against Miss Kong Suet Man for further reports from the probation officer and I will resume the hearing, if convenient to everybody, on Thursday 14th January 1993 at 9:30 a.m.

14th January 1993

13. I have no hesitation in saying that at the time the magistrate made his order it was the most appropriate that could have been made. But it seems that since then the appellant has taken full advantage of the period on bail which resulted from her application in July. The present probation report is far more favourable, both as to her personal approach and the active interest of her father in her affairs. I am therefore prepared to allow the appeal and make a probation order in her favour. I have explained the nature of the order and the special conditions which I intend to include in it. The appellant has given her consent. I shall make the order for two years. That is longer than the probation officer recommends but I am taking a cautious approach and if in time the probation officer thinks fit application may be made to reduce the probation period. The special conditions to be included in the order are that the appellant shall work as directed by the probation officer, that she shall live at her mother’s home and that she shall remain at that home between the hours of 10:30 p.m. and 7 a.m., although she may live elsewhere or remain out beyond those hours with the probation officer’s consent from time to time. She shall report to or receive visits from the probation officer as the probation officer directs.