The Queen v. Leung Kin Man

HCMA000525/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 525 OF 1988

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BETWEEN

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Coram: Hon Bewley, J. in Court

Date of hearing: 19th July, 1988

Date of delivery of judgment: 19th July, 1988

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J U D G M E N T

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1. The appellant was convicted by Mr. Candy at South Kowloon Magistrates Court of attempted theft, resisting a police officer and going equipped for stealing. He was ordered to be detained in a Detention Centre. He appealed against both conviction and sentence.

2. There was no merit in his appeal against conviction. The only ground that Mr. Alderdice put forward was that the magistrate had failed to consider the inherent unlikelihood of these offences being committed by a man with a clear record who was proved to have lent a friend $3,000 earlier in the day.

3. It was a straightforward conflict of evidence between the police witnesses of  and the appellant. There was no possibility of error on the part  the police. Either they were lying or the appellant was lying. The magistrate considered the matter carefully and was satisfied that the police evidence was true.

4. The appellant, who is 22, was considered suitable for the Detention Centre but he was also recommended for probation. The magistrate thought an immediate custodial sentence was appropriate, but he did not say why he rejected the Probation officer's recommendation.

5. The appellant has a steady job working for his father as a carpenter. He has always lived at home. He is engaged to be married. Both father and fiancee were in court. The Probation Officer found him cooperative and did not think he was the delinquent type. It is therefore surprising that the magistrate felt that a probation order was not appropriate.

6. The appellant had spent over two months in the Detention Centre. I was satisfied that it was in the interest of all concerned that he should now undergo a period of probation.

7. I therefore allowed the appeal against sentence, quashed the Detention Centre order and placed the appellant on probation for 12 months.

Representation:

Mr. P.J. Cahill, Senior Assistant Crown Prosecutor, for Respondent.

Mr. Gary Alderdice, instructed by M/s. R.Y. Lo & Co., for Appellant.