HKSAR v. Lepper Frank Richard
Read the full judgment text of HCMA 723/2004 on BabelCite. This High Court CFI judgment was delivered on 27 August 2004.
1. The Appellant was convicted after trial in the Magistracy of two counts, one of Obtaining Services by Deception, contrary to section 18A (1) of the Theft Ordinance, Cap 210, and Breach of Condition of Stay – an overstay – contrary to section 41 of the Immigration Ordinance, Cap 115.
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HCMA 723/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 723 OF 2004 (ON APPEAL FROM ESCC 2577/2004) ____________ BETWEEN
____________ Before: Hon Beeson J in Court Date of Hearing: 27 August 2004 Date of Judgment: 27 August 2004 Date of Reasons for Judgment: 15 September 2004 ___________________________________ REASONS FOR JUDGMENT ___________________________________ 1.The Appellant was convicted after trial in the Magistracy of two counts, one of Obtaining Services by Deception, contrary to section 18A (1) of the Theft Ordinance, Cap 210, and Breach of Condition of Stay – an overstay – contrary to section 41 of the Immigration Ordinance, Cap 115. 2.The Appellant was sentenced to one month’s imprisonment for the first charge and 7 days’ imprisonment on the second charge. The two sentences were ordered to run consecutively. The Appellant had served the sentences already. 3.The Appellant appealed against his conviction on both charges. He had appeared at the hearing before the Magistrate in person and again appeared in person on this appeal. Facts 4.The prosecution case was that the Appellant went to a restaurant and ordered food and drinks valued at $273.90. On finishing the meal, he told the waiter he had no means to pay because he had lost his wallet. A report was made to the Police. The Appellant was arrested and interviewed and admitted under caution that he entered the restaurant and ordered food and drink knowing that he didn’t have sufficient money to pay for it. 5.Investigation confirmed that the Appellant had been permitted to remain in Hong Kong, as a visitor, for 90 days from 18 February 2004 to 16 May 2004. He remained in Hong Kong after that date until 7 June 2004. 6.The Appellant gave evidence on his own behalf and said that he went into the restaurant because he needed to eat and drink. He said he drank so much beer because he was getting nervous. When he entered the bar he knew he had no money to pay the bill; had not arranged to meet anybody there; none of his friends knew he was there and he ordered the food and drink knowing that he would be unable to pay. 7.In respect of his overstaying, he explained that he entered Hong Kong to do business, but he could not return to his home in China as he was without sufficient funds. The Magistrate accepted the prosecution evidence and found that what the Appellant said did not give rise to any defence to either charge. She found the charges proved and convicted the Appellant. 8.The Appellant, who has no right of abode in Hong Kong, was returned to China, where he now lives, after he completed his sentence of imprisonment. He filed general grounds of appeal, but did not provide any specific grounds of appeal. On appeal, he submitted that he had a “higher right” to be in Hong Kong, because of his family connections with Hong Kong since 1962. He said also that he had had a large client base for a business which he and his family were running, but which had been stolen from him and his family, although it was not clear, from his submissions, by whom the clients were stolen. The Appellant persisted in saying that he had a higher right to be in Hong Kong than presently existed, on the basis of his family connection with Hong Kong in the past. His family had been on “active duty” in Hong Kong since 1962, although he did not elaborate on the meaning of “active duty”. 9.He explained his obtaining services by deception by saying he needed to order things because he required food and he had to pay later. The fact he was out of funds was occasioned by the depredations on his family’s business or his previous connections and therefore he needed to order and pay later. No further grounds were given. None of these matters appear to have been raised before the Magistrate, whose Statement of Findings recorded rather different explanations for both offences. Nor were they communicated to the police officer who took a statement from the Appellant after his arrest. 10.There is nothing before me to substantiate any of the matters raised by the Appellant. The appeal against conviction is dismissed.
Ms Leung S Y Rosaline, SGC, of Department of Justice for Respondent Lepper Frank Richard, Appellant in person |