THE QUEEN v. CHAN WING YI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1697 OF 1990

-----------------

BETWEEN

-----------------

------------------

JUDGMENT

------------------

1. The 1st appellant in this matter Chan Wing-Yi, a young girl of 19 was convicted on the 11th October 1990 on three charges of theft to which she, in the course of her trial, pleaded guilty.

2. The magistrate called for probation officer's report and a report from the Correctional Services Department following which he sentenced the appellant to the Training Centre.

3. The reports reveal that the appellant had, up to approximately three years prior to the offences, led a respectable life in regular employment and living at home with her mother. She appears to have fallen into bad company and I accept that the offences which were thefts of jewellery from her mother came about as a result of pressure of some kind from her boyfriend.

4. The appellant gave birth to a baby daughter in late November 1990 while in custody and I am told by Mr Lee, who appears for the appellant, that the baby is being looked after by the parents of her boyfriend and that they are aged 71 and 68. The mother of the appellant is, I am told, not in a position at this point in time to look after the baby in that she has her own commitments and a two-and-a-half year old baby of her own.

5. In the report, it shows that the mother of the appellant was at that time of the view that she was in need of some custodial sentence which would assist her in rehabilitating herself. Mr Lee now tells me that she has come to the view that her daughter has learned from the lesson that she has received and that she is forgiving in the matter, and is further of the view that the appellant's newly born child is in need of the care and attention of its. mother.

6. I don't criticise the magistrate in any way in imposing the sentence that he did. On the information that he had before him it was shown that the appellant had drifted into a unsatisfactory life style and would benefit from some instruction and training. I am however conscious of the fact that the appellant is young, she is a first offender, that pressure was brought to bear on her by her boyfriend and that by entering her plea when she did, she would seem to be showing some remorse in the matter. I am also concerned about the welfare of the newly born baby and the fact that that child is being looked after by elderly people whom I am told are not in particularly good health. Having regard to all these factors, I think this is a case where, as an act of mercy, I can accede to Mr Lee's application that the appellant be released. I am, of course, concerned that the appellant does not drift back into the irresponsible life style that she was leading. While probation was not recommended in the report, I am satisfied that this appellant could get benefit from a period of probation which I assume the appellant is prepared to accept. The appeal will be allowed to the extent that the Training Centre sentence is set aside and the appellant is placed on probation for 12 months, during which time she will live and work as directed by the probation officer.