The Queen v. Chu Ka-wing

HCMA000763/1988

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 763 OF 1988

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BETWEEN

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 18th October, 1988

Date of Delivery of Judgment: 18th October, 1988

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of theft. The charge alleged that on the 15th of May 1988 at the carpark of a country park in Sai Kung, he stole a loudspeaker valued at $100, the property of another.

2. The facts of the case are very brief indeed. They simply say that at 9.15 p.m. on the 19th of May, the Appellant was seen loading goods onto his own goods vehicle. He was approached by two police officers who searched him and his vehicle That search revealed the presence of the loudspeaker on the Appellant's vehicle. The officers asked the Appellant about the loudspeaker and he immediately admitted that he had stolen it. After he was cautioned, he went on to say that he had stolen it from a goods vehicle at a country park on the 15th of May.

3. As a result of what the Appellant told the police officers, they were able to make enquiries which successfully located the owner of the loudspeaker who apparently, had not reported its loss.

4. He is almost 22 years of age and has no previous convictions. The magistrate before sentencing obtained a pre-sentence report from a probation officer and after considering it ordered that he be imprisoned for 3 months but suspended the sentence for a year. The magistrate also ordered him to pay $300 costs.

5. He now appeals against that sentence.

6. The concluding part of the Probation Officer's report reads as follows:

"As regards the offence, the Defendant admitted he had done wrong but for fun without realising the gravity that was involved. He sought for leniency while his parents alleged that they would give a firmer grip on him thereafter. From the above it is credible that the Defendant might have committed the present offence out of impulsiveness and playfulness and the incident was rather incompatible with his usual mode of behaviour. Besides the grievous court experiences seem to have given the Defendant a lesson and will be a potent force to help him to reform himself. Coupled with the family's guidance it is opined that probation supervision can be dispensed with in this case."

7. It seems to me to be quite clear from the probation officer's report that the probation officer thought that probation supervision was not required and for that reason, and that reason alone, did not recommend probation.

8. The Appellant's conduct in immediately admitting the offence, giving the police sufficient leads to enable them to find the owner of the stolen property, his immediate plea of guilty and the impression he made on the probation officer all suggested that this young man was sincerely remorseful for what he had done. It seems to me, therefore, that he is deserving of another chance and that a prison sentence in his case, even though suspended, was not the appropriate penalty to impose.

9. I accordingly allow the appeal, quash the sentence and in lieu thereof order that he be conditionally discharged on his own recognizance in the sum of $250 to be a good behaviour and to come up for sentence if called upon at any time within 18 months from today.

Representation:

Mr. Wilson, CC for Crown

Mr. Robert B. Buchanan (William Au & Co.) for Appellant