HKSAR v. CHAN SIN TING

HCMA66/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.66 OF 2005

(ON APPEAL FROM EJ700086 & EJ700087 OF 2004)

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J U D G M E N T

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Background

1. The appellant Miss Chan Sin Ting appeals against the sentence imposed upon her by Mr Casewall on 16 December 2004 that she be detained in a Training Centre.  That order was made following the appellant’s conviction, after trial, on 11 November 2004 of the offence of theft and her conviction, following her plea of guilty on 2 December 2004, of another offence of theft.

Grounds of appeal against sentence

2. The appellant, who appears in person, by way of grounds of appeal against sentence asserts simply the “pro forma” grounds that her sentence was too severe.

The reasons for sentence

3. The magistrate called for a plethora of reports upon the appellant before he imposed sentence, namely a report from the Commissioner for Correctional Services in respect of her suitability to be detained in a rehabilitation centre or a Training Centre; a report from the Social Welfare Department of her progress, she being the subject of a Care and Protection Order; psychiatric and psychological reports; a probation officer’s report was sought in respect of her suitability for a probation order and, finally, the magistrate sought the assistance of the Young Offenders Assessment Panel. 

4. The need for this battery of reports ordered by the magistrate is evidenced by the appellant’s criminal record and her long-standing behavioural problems.  The magistrate noted that the appellant had first got into trouble when she was only nine years of age.  In April 1998, she received a caution under the Superintendent’s discretion in respect of an offence of theft.  In July 2001, she was made the subject of a probation order for 18 months having been convicted of the offence of burglary.  In May 2002, she was made the subject of another probation order for a further period of 18 months having been convicted of the offence of theft.  Finally, in April 2004, the appellant was placed on a Care and Protection Order until October 2005 having been convicted of a further offence of theft.

5. Of the report from the Social Welfare Department, the magistrate noted that the appellant was described as having a conduct disorder and a mild grade mental retardation.  Further, that open supervision under the Care and Protection Order had been “totally ineffective”.  No places were available, for years to come apparently, for the appellant to be made the subject of a residential placement.  Given that the appellant had been the subject of no less than two probation orders and two care and protection orders but had gained little insight into her dishonest behaviour, probation supervision was not recommended.  The appellant had been the subject of a psychiatric examination in 2002 that arose from her violent and emotional behaviour at school.  However, the psychiatrist was of the opinion that the appellant was unlikely to benefit from impatient psychiatric treatment.  The psychologist was of the opinion that “… the provision of a structured environment with clear rules and regulations and consistent reinforcement patterns should be helpful in setting limits to her anti-social behaviour”.  However, the report in respect of her suitability for placement in a rehabilitation centre or detention in a training centre concluded that “She is considered psychologically unfit for the rehabilitation centre or training centre programme”.

6. Faced with that not inconsiderable dilemma, the magistrate sought the assistance of the Young Offenders Assessment Panel.  Their report acknowledged that the circumstances of the appellant had required lengthy deliberation of the Panel, after which they had made recommendation, namely that “… the Training Centre programme as the most viable alternative to help her reform”.  In addition, the Panel recommended that the appellant received the assistance of a psychologist whilst so detained. 

7. In determining that the only viable sentencing option available to him, save for imposing a term of imprisonment, was to order that the appellant be detained in a Training Centre, the magistrate made the following observation :

“Firstly that placement [in] and open setting was not possible without putting the community at risk from her anti-social and dishonest behaviour.  The community had to be protected form her consistent stealing.  Secondly the appellant needed a structured setting in order for an attempt at rehabilitation to be made.  Thirdly the only structured environment presently available was the Training Centre programme which also provided the possibility of psychological intervention”.

The submissions of the appellant

8. The appellant who appears in person reminds the court that she is still only 15 years of age and, having been detained in the Training Centre for some time now, says that she realises how precious freedom is and expresses the wish to be reunited with her family.  She asks the court to give her a chance. 

9. On behalf of the respondent, Ms Lam in her written skeleton argument submits that in all the circumstances the magistrate had balanced properly the interest of the community on the one hand and the interest of the appellant on the other.  She submits that there is nothing wrong in principle with the sentence imposed, and indeed that is entirely appropriate in the circumstances. 

Conclusion

10. Section 4(1) of the Training Centre Ordinance, Cap.280 stipulates the factors to which the court must have regard before imposing detention in a Training Centre.  Assistance as to the proper approach to the section is found in the judgment of Ribeiro PJ of the Court of Final Appeal in HKSAR v. Wong Chun Cheong [2001] 4 HKCFAR 12.  It is clear from the magistrate’s carefully articulated Reasons for Sentence that he was mindful of the appropriate approach and that he complied with it.  In all the circumstances, I am satisfied that the sentence imposed upon the appellant was entirely appropriate.  There is no merit in the grounds of appeal against sentence and the appeal is dismissed.