R. v. LUN CHING YEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1384 OF 1996

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J U D G M E N T

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1. The appellant was convicted by her own plea of four counts of obtaining property by deception contrary to s.17(1) of the Theft Ordinance, Cap.210. The admitted facts were the appellant stole the credit card of her colleague on four different occasions and used the card on these occasions over a period of eight days to purchase various items from shops representing that she was the owner of the card. She was sentenced to detention in a Training Centre.

2. At the time of the offences, the appellant was 18 years and 7 months old and she had three previous convictions of theft on each occasion of which she was put on probation.

3. The magistrate took a serious view of the matter. He was of the opinion, quite rightly, that the appellant being still young, he should consider all other means of dealing with the appellant before considering imprisonment. He considered the object of sentencing the appellant was one of rehabilitation rather than punishment. He called for the report of the probation officer and a Training Centre Report. The magistrate referring to the probation officer's report said this :

"As could be expected, the probation officer Ms Shum took a very dim view of the effectiveness of any further period of probation for her rehabilitation in view of her repeated transgression and superficial response to probationary supervision. However, she did recommend a Community Service Order in order 'to make reparation to the society for her wrongdoing and assist her rehabilitation'."

4. It should be noted that the Training Centre Report also recommended detention in a training centre. The magistrate considered that the previous probation orders which failed were not sufficiently effective for the appellant's rehabilitation and he chose a Training Centre Order as the appropriate sentence.

5. It should be noted from the probation officer's report, in recommending a Community Service Order, Ms Shum the probation officer informed the court that she had collateral contacts with Miss Pang, staff of the Community Service Orders Office. Miss Pang's opinion was that :

"... a Community Service Order can train up her sense of self-discipline and provide her with more exposure in interpersonal relationship. Also, it can help her to learn proper ways of problem solving from community service experience under professional guidance. Hence, a Community Service Order is assessed to be suitable for this case and recommended."

6. The appellant was gainfully employed in various jobs after she completed Form 5 until her detention for the present offences. The probation officer reported that the appellant admitted she repeatedly transgressed the law in order to seek her parents' attention and concern. The present offences were committed because she also wanted to take revenge on the victim regarding their relationship problem.

7. The magistrate did not specifically ask for a report on the appellant's suitability for Community Service Order although it was one of the alternatives to imprisonment open to the magistrate when sentencing an offender below the age of 21 years. In order to have more information about her suitability in that regard, I asked for such a report.

8. The report now before me indicated that since her detention in the institution, the appellant had manifested no overt behavioural problem and had really got insight into her law breaking behaviour and problem. She had showed fundamental attitudinal change and could reflect on her misdeeds. The report stated that she had now a determination to reform and her relationship with her parents had been much improved and her open rehabilitation is considered optimistic. Community Service Order was recommended as an alternative to custody.

9. Having regard to her change of attitude and that she had been detained in the Training Centre for more than three months during which she had learned to have better insight and discipline and that her open rehabilitation was considered optimistic, a Community Service Order would be an alternative sufficiently effective to enable her to begin afresh. In the circumstances, in my opinion, the appellant should be given this last chance. Accordingly, the appeal against sentence is allowed. The sentence of detention in a Training Centre is set aside and a Community Service Order is substituted for it.