Tse Yuk Lin v. The Queen
Read the full judgment text of CACC 320/1981 on BabelCite. This Court of Appeal judgment.
1. On the 22nd February 1981 the appellant was in a supermarket in Choi Wan Estate. She was seen to take a bottle of shoe oil and put it under her coat. She left the supermarket without making payment and was stopped outside it. There was then, after search, found upon her person one set of colour pencils and a book case, two other pencils, one box of pencils and a packet of biscuits unpaid for. The total value of the goods was trivial in the sence of amount, they being priced at $26.50.
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CACC000320/1981
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 320 of 1981 -----------------
Coram: Silke J. Date of Judgment: 28th May 1981 ----------------- JUDGMENT ----------------- 1. On the 22nd February 1981 the appellant was in a supermarket in Choi Wan Estate. She was seen to take a bottle of shoe oil and put it under her coat. She left the supermarket without making payment and was stopped outside it. There was then, after search, found upon her person one set of colour pencils and a book case, two other pencils, one box of pencils and a packet of biscuits unpaid for. The total value of the goods was trivial in the sence of amount, they being priced at $26.50. 2. She was charged with theft and appeared in San Po Kong Magistracy on the 3rd March 1981 when she pleaded guilty, was convicted and was sentenced to a fine of $500. The conviction was necessarily recorded. 3. She was represented on that occasion and the Magistrate was asked to exercise leniency in particular, as is usual in this type of case, not to record the conviction. 4. On the 10th March she again appeared before the Magistrate, this time in person, to seek a review of her sentence. On this occasion that which has become a stock reason for the non-recording of a conviction was advanced; that she was planning to go abroad for further studies "and conviction will be great obstacle to me for that and in future life". 5. Her application was refused and she now Appeals to this Court against her sentence. I allowed the Appeal in part, having called for and received a useful Social Welfare Report, and gave oral reasons for so doing. These are now reduced to writing. 6. It should be born in mind that the offence charged, and quite rightly so, was one of theft. The appellant admitted theft and was convicted of theft. 7. The Magistrate set out in extenso his reasons for sentence. With the majority of those reasons I agree. With some I do not. He stated "The idea that theives should be automatically let off without any penalty simply because they are students or worse still Government servants in not to be found in any principle of law". This, while on the face of it correct is in my mind to overstate the position. One must consider the offence and the offender and the effect a sentence will have upon such an offender. A bond or probation is not a "letting off", nor for that matter is a suspended sentence of imprisonment. 8. There are powers contained in Section 36 of the Magistrates Ordinance to make certain orders "with or without recording a conviction" and these are limited by the provisions of that section to certain specified instances. It is that last phrase which has given rise to a multitude of difficulties. 9. In my judgment if the section were read as permitting nominal punishment to be inflicted, or no punishment at all, in the light of the character, antecedent, age, health or mental condition of the offender or the trivial nature of the offence itself or the extenuating circumstances under which that offence was committed without going on to order that no conviction be recorded a lot of the difficulties would be overcome. It is advisable that the non-recording of a conviction should, in the majority of cases, be restricted to the rare instance where the Court feels that, while an offence has been committed, no prosecution should really have been brought at all. Deliberate theft is unlikely to be one of those cases and considering all the elements set out in section 36, which of necessity here require consideration being given to the appellant's clear record, her age of eighteen years, her desire to further her education overseas and the amount involved in the offence, the sentence passed involving a recorded conviction was a proper form of sentence. 10. It seems to me that the Immigration Authorities of a recipient country are entitled to be fully aware of the background of an aspiring entrant. That he or she has been found guilty be a competent court of an offence is part of that background whether or not an actual conviction is recorded. To seek to do other than to fully inform such authority is, in my view, to attempt to deceive that recipient country. I would have thought that no ordinary intelligent Immigration Officer would be incapable of distinguishing between a solitary offence of shoplifting-theft and say armed robbery and of placing such an offence in its proper perspective. 11. The appellant here is a good student who produced testimonials to that effect to the Probation Officer. She was described as a quiet, docile girl of introverted personality who behaved reasonably well at home. The offence was not in line with her "general behavioural pattern" according to the report. 12. I was prepared to allow this Appeal in part and, giving due regard to the Social Welfare Report the contents of which were not available to the Trial Magistrate, vary the sentence to the extent that the sentence of a fine is quashed, the appellant is placed upon a bound for a period of one year to be of good behaviour and to appear for sentence if called upon in her own recognizance in the sum of $200. The conviction will be recorded.
Representation: K. Ramanathan Esq. (H.A. Hoosenally & Co.) for Appellant. Mason Parker Esq. for the Crown |