TSANG KIT YEE v. R.

CACC000189/1996

1996, No.189
(Criminal)

IN THE COURT OF APPEAL

BETWEEN
THE QUEEN Respondent
AND
TSANG KIT YEE Applicant

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Coram : Hon Yang, C.J., Nazareth, V.-P. and P. Chan, J. in Court

Date of Hearing : 31 July 1996

Date of Judgment : 31 July 1996

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J U D G M E N T

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Nazareth, V.-P. (Giving the Judgment of the Court) :

1. The applicant Tsang Kit Yee pleaded guilty to unlawful wounding before HH Judge Caird in the District Court on 28th March this year.She was convicted and sentenced to detention in a training centre. She now applies for leave to appeal against that sentence andasks for a reduction or to be freed from detention.

2. The facts are as follows. It was a bad case of baby battering. The father of the 6 month old baby girl involved was going to MainlandChina for 5 weeks. The mother was in prison. The father left the baby with Tsang on 4th March this year. Tsang was to look afterthe baby for $4,000 during the period of the father’s absence. She took it to the room at Butterfly Estate in Tuen Mun which sheshared with her boyfriend Chan Wai Chung, who was dealt with by this Court earlier today and had his sentence increased from 10 to15 months. When the father returned on 13th April this year, he found the baby’s left arm swollen. Medical examinations revealedmultiple injuries and fractures at different places and that had been inflicted at different times. The applicant and Chan admittedthat they had each picked up the baby and thrown it several times on the sofa. In addition, Chan admitted that he had beaten thebaby.

3. The judge, very properly, called for reports from the Probation Service, and also from the Commissioner of Correctional Servicesas to suitability for detention in a training centre.

4. The Probation Officer’s Report and Supplementary Report revealed weak character, manifested in unsatisfactory conduct, frequent truancyand behaviour problems at school, from which Tsang dropped out at the age of 15. That was then followed by a period of unstable workpattern and undesirable associations. With reference to the offence, the reports concluded in this way :

” … Her inexperience in babysitting could be understood, but her sense of responsibility on bearing the consequence of her act seemedto be weak. In view of the nature of the offence and her attitude, open probation supervision seems to be not an effective measurefor the Accused’s reform which is therefore not recommended.”

5. The Correctional Services’ Report also indicated a weak character, but it was pointed out not wicked in nature and, with referenceto the offence, that being immature, Tsang had not considered the consequence of her acts. She appeared genuinely remorseful andhad apologised to and been forgiven by the parents of the baby. She also acknowledged to the officers of the Correctional ServicesDepartment making the report the love and concern her parents had for her. The report went on to say that :

” While on remand, TSANG managed to behave herself and was able to comply with the institutional rules and regulations.”

The report of the Correctional Services officer concluded :

” In the interest of her reformation, I am of the opinion that she may stand a chance of success in turning over a new leaf of lifeif given due and adequate social intervention. In this light, a course of disciplinary training coupled with a period of after-caresupervision would be deemed expedient for her rectification.”

The Commissioner considered that Tsang was suitable for detention in a training centre and in that context, confirmed that she wasmentally and physically fit.

6. In her home-made grounds in support of her application for leave to appeal, Tsang said this :

” … I apply to have a reduction in the sentence as this was the first time that I committed the offence. I feel that the sentencewas too heavy. I hope the Judge would give me a chance and pass a lenient sentence and to allow my appeal.”

7. Before us today, she has emphasised her remorse, the benefit she is gained in the three months she has been in detention in a trainingcentre, and how she now realises her responsibilities. She asks to be in effect released so that she does not have to lose 2 or 3years’ freedom. She asks also that consideration be given to her parents, a mother who is about 60 and ill and a father who is 50years old or so. I should also mention that the father of the infant who was injured appeared in Court and somewhat unusually intervenedand said that the baby is now alright and that he would like Tsang to be given a chance.

8. However, the offence is a serious one. We have already said that earlier today we increased the sentence of the co-defendant. Oncethe Probation Services reckoned that they could not recommend her for probation, virtually, the only option was then to send herfor a period of detention in a training centre. The purpose of that is to give disciplinary training. Now that period of detentioncannot, under the law, be less than 6 months nor can it be more than 3 years. It is the possibility of detention for 3 years that,of course, upsets a lot of young persons who are sentenced to detention in a training centre; but it does not mean that they remainthere for 3 years. The Commissioner for Correctional Services has a discretion to release them early and there is every prospectthat if the applicant makes good progress there – and she had impressed us with her remorse and her statements of responsibilityand reformation – that she will be released early.

9. It remains to say that the judge’s sentence was clearly not wrong in principle nor was it manifestly excessive. On the contrary,it appears to have been the right sentence. There is no ground for interfering and the application is refused.

(T.L. Yang) (G.P. Nazareth) (Patrick Chan)
Chief Justice Vice-President Judge of the High Court

Representation:

Mr I Grenville Cross QC & Mr Wesley Wong (Crown Prosecutor) for Respondent

Applicant – Tsang Kit Yee – in person