The Queen v. Lam Wai Ki

HCMA000821/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 821 OF 1988

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BETWEEN

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Coram: Hon. Bewley, J. in Court.

Date of hearing: 6th September, 1988.

Date of delivery of judgment: 6th September, 1988.

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J U D G M E N T

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1. The appellant was convicted of theft before Mr Lee at San Po Kong Magistrates Court. His appeal against conviction has been abandoned.

2. On 24th April the proprietor of an electrical shop in Tokwawan Road placed three air-conditioners on top of each other in a passage-way outside his shop. That afternoon he came to the entrance and saw the appellant removing an air-conditioner from the top of the pile. When he saw he was being observed,, the appellant put down the appliance and fled, but was caught by employees of the shop after a short chase. He denied the charge and said he had been arrested for no reason, but was convicted in the face of overwhelming evidence.

3. The appellant is aged 20 and is a used car salesman earning $4,000 per month. He has no previous convictions.The Probation Officer's report was favourable. The appellant had been brought up in a harmonious family. He had completed Form 4. He did not mix with undesirable characters or stay out late at night. He contributed his share to the family finances, The Probation officer, however, deemed him unsuitable for probation on the grounds that he denied guilt.

4. The magistrate seems to have taken the view that his only option was a custodial sentence. The value of the article stolen certainly was a matter to be considered and I think a fine or discharge would not have been appropriate. On the other hand a detention centre order was a severe sentence for a first offender with the appellant's background. He has now been in custody for two months and has been sufficiently punished. The appeal against sentence is allowed and the appellant placed on 12 months probation. The appeal against conviction is dismissed.

Representation:

Mr C. Coghlan, C.C., for Respondent.

Mr J. Pickavant, of M/s. John M. Pickavant & Co., for Appellant.