Li Wing v. The Queen
Read the full judgment text of CACC 300/1971 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against a sentence of 6 months' imprisonment imposed upon a conviction for unlawful possession under s.30 of the Summary Offences Ordinance.
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CACC000300/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 300 OF 1971 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 8th June, 1971. ----------------- JUDGMENT ----------------- 1. This is an appeal against a sentence of 6 months' imprisonment imposed upon a conviction for unlawful possession under s.30 of the Summary Offences Ordinance. 2. Clearly the appeal against sentence must be allowed, because under s.30 the maximum penalty is a fine of $1,000 or imprisonment for 3 months. But there is another point about the case which has caused me some disquiet and I have thought it right to give leave to the Appellant to appeal against his conviction. The Appellant originally is recorded as having pleaded not guilty. On a subsequent day it is recorded that the charge was "read and explained and understood" and that he "pleaded guilty". From that, and from the fact that s.19 of the Magistrates Ordinance required any admission to be recorded as nearly as possible in the words used by him, I take it that what he said was "Guilty". Section 30 creates an offence which is different from the ordinary run of criminal offences. Indeed, the Information laid in this case did not strictly allege an offence at all: it read:
It was not alleged that he was unable to give a satisfactory explanation. Whether or not that was a fatal flaw in the Information itself it created a flaw when the learned Magistrate merely had the charge read in that form. A person may well have in his possession property reasonably suspected of having been stolen or unlawfully obtained and yet be able to give a satisfactory explanation. The Appellant should have been asked (1) whether he admitted possession of the woollen cardigan; (2) if so, whether it was reasonable to suspect that it had been stolen or unlawfully obtained and (3) if so, whether he had any explanation of his possession to offer. His answers to those questions should have been recorded and the Magistrate should then have made up his mind whether any explanation given would, if true, be satisfactory. That not having been done, counsel for the Crown has not sought to support the conviction and in all the circumstances of this case I think the proper course is for me to quash not only the sentence but the conviction also. 3. The Appellant may well be lucky that the proper procedure was not followed, but it is important that it should be followed in order to avoid the possibility of injustice. 8th June, 1971. Representation: |