Tong Wai Ming v. The Queen
Read the full judgment text of CACC 341/1972 on BabelCite. This Court of Appeal judgment.
1. The judgment of the learned magistrate in this case was brief; some people might say it was commendably brief, but unfortunately I cannot agree. The learned magistrate said in the course of his findings that he accepted the evidence advanced by the prosecution and rejected the evidence advanced by the defence. As Mr. Fok for the appellant has pointed out this was an improper approach. He should have stated whether or not he was convinced beyond reasonable doubt that the appellant was guilty o
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CACC000341/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 341 OF 1972 -----------------
----------------- Coram: Leonard, J. Date of Judgment: 18th July 1972 ----------------- JUDGMENT ----------------- 1. The judgment of the learned magistrate in this case was brief; some people might say it was commendably brief, but unfortunately I cannot agree. The learned magistrate said in the course of his findings that he accepted the evidence advanced by the prosecution and rejected the evidence advanced by the defence. As Mr. Fok for the appellant has pointed out this was an improper approach. He should have stated whether or not he was convinced beyond reasonable doubt that the appellant was guilty of the offence with which he was charged. The point, says Mr. Fok, is whether or not the evidence adduced by the defence raised within his mind a reasonable doubt as to the guilt or innocence of the accused. I agree that the learned magistrate did not specifically state that the evidence given by the accused did not raise a reasonable doubt in his mind. He should have had to make some such comment if he were summing up to a jury. This, however, was a plain and straight forward case. The appellant was arrested with a purse, which a police officer whom the magistrate believed had seen him take from the handbag of a woman, at a bus stop, in his hand. No suggestion could possibly be made that the police had some motive for faking a case against him. The appellant was caught in flagrante delicto. There is no doubt whatsoever that he is guilty of the offence with which he was charged. The appellant in this particular case is relying on a mistake by the magistrate. This particular magistrate is extremely brief in his statements of findings. I am satisfied, however, from the full note of the evidence which he has taken that he gave proper and adequate consideration to the case advanced by the appellant in the court below. The appellant cannot possibly escape from the fact that he was found with this purse in his hand and was seen taking it. He was accordingly properly convicted. However, I would appreciate it if the learned magistrate would set out his statements of findings with greater particularity. 2. The appellant in this case also appeals against sentence. I have disposed of the appeal against conviction which was completely unwarranted. I now have to decide whether the learned magistrate was wrong in principle or imposed a manifestly excessive sentence. He sent the appellant, a boy of 18 years, to the training centre for theft of a woman's purse. The appellant and others were at a bus stop. The appellant opened the woman's handbag and stole a purse from it. He had a clear record and the learned magistrate decided to send him to the training centre having obtained in advance a probation officer's report. I cannot say that on the information before him the sentence was manifestly excessive or that the magistrate acted on any wrong principle. At the same time the appellant has been represented by counsel here and I have had the advantage of listening to his mother and of listening to counsel on his behalf. I regard their pleas as alien to fresh evidence which I am entitled to consider in the matter. 3. In all the circumstances of the case I am of the opinion that it is possible for me, in view of this additional information, to take a lenient view. In doing so I in no way intend to indicate that the learned magistrate was wrong, I have been impressed by the attitude of the appellant's mother and her determination to control her son in future. The appeal against sentence will be allowed. In lieu of detention in the training centre the appellant shall be placed on probation for a period of two years. It shall be a condition of probation that the defendant shall for the first six months thereof be indoors in his family house every evening not lager than 9.30 p.m. It shall be a further condition that he shall throughout the period of probation reside in such place and obtain such education as the probation officer may from time to time advise.
18th July, 1972. Representation: P. Fok (Philip K.H. Wong & Co.) for appellant. Stapp for Respondent. (Oral judgment reduced into writing) |