Heinz Peter Nussbaumer v. The Queen
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CACC000060/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 60 OF 1970 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 25 February 1970 ----------------- JUDGMENT ----------------- 1. The appellant, aged 27, was convicted of larceny in a dwelling; the particulars of the charge being that between the 17th and 18th November in the dwelling house of a Mr. Marshall he stole $2,000 Hong Kong currency, $49 U.S. currency and one cheque drawn on the Bank of the Netherlands in the sum of $100. 2. The appellant is an Austrian national and, according to what he now tells this Court, he has been living in Hong Kong for the last 12 months. Apparently he is a teacher and teaches French, German and Spanish. At the material date he was living in the same house as a Mr. Marshall and there were two other persons living in the house, a Mr. Chan and his wife. On the 18th November Mr. Marshall noticed that the money and cheque to which I have already referred was missing from his camera case in which he had placed it. He reported the matter to the police and as a result of information received the police, acting with the most commendable expedition, went to the Airport, where they saw the appellant who was about to board a plane for Manila. He was questioned, and he was in fact searched, and in the fob pocket of his trousers was found a bundle of Hong Kong currency notes, $49 in U.S. currency and a cheque drawn on the Dutch Netherlands Bank. The complainant said that that cheque had been given to him by a lady whose son he had been teaching. That evidence was confirmed by the lady herself. 3. The appellant's story was that he had earlier cashed that cheque for the complainant and the cheque was still in his possession. He said that the other money found upon him was his own money, and he said that he was on his way to Manila to obtain a visa enabling him to continue to stay in the Colony of Hong Kong. 4. The learned Magistrate, upon the evidence before him, was fully satisfied that the charge of theft against the appellant had been proved beyond doubt, and he was convicted. He now appeals against that conviction. I am satisfied there was ample evidence to support the conviction. The appellant was sentenced to 12 months' imprisonment. He has no previous convictions against him and I am quite satisfied that that sentence was manifestly excessive. In my view, the quicker the appellant is able to leave the Colony of Hong Kong the better. He tells me that he wishes to return to his native country and the order I propose to make, therefore, is to quash the sentence of 12 months' imposed upon him. I ought perhaps to add that he has already been in custody serving a sentence since the date of his conviction, which was the 16th December, so that he has already served over 2 months imprisonment. 5. The order I propose to make is that he be discharged, conditional upon him entering into a bond, in his own recognisance in the sum of $100, to leave the Colony at the earliest possible opportunity. He will be taken to Kai Tak Airport to-morrow in custody, or if to-morrow is not convenient, at such other time as may be convenient, and he will leave the Colony of Hong Kong, and I make it a condition of the bond that he should not return to the Colony for a period of 2 years. I ought, perhaps, to add that I am quite catisfied, upon the basis of the order made by Lord Goddard, L.C.J. in Flaherty's case, referred to in the case of James Ayu(1), that this is an order that I can properly make in the form of a common law recognisance. 6. You will be escorted to-morrow to Kai Tak Airport, where you will be put upon a plane and you will leave the Colony, and you will not return here for the next two years. If you do, you will be brought back here for punishment in this case. Representation: Appellant in person. Lucas, S.C.C. for Crown/Respondent. (1) 43 C.A.R. 31. See also 1958 C.L.R. 614. |