Chow Kwong Fat v. The Queen

Case No.CACC 67/1980

Court

Court of Appeal

Date28 Feb 1980

Judge—

Case Document

100%

IN THE SUPREME COURT	Criminal Appeal
	1980 No. 67

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BETWEEN
	CHOW KWONG FAT	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Li, J. in Court.

Date of Judgment: 28 February 1980

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JUDGMENT

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1. This is an appeal against sentence for conviction of theft upon the appellant's own plea of guilty. The appellant was fined $250. Against the fine the appellant has raised no objection. The purpose of this appeal is against his convictions being recorded.

2. The facts involved in this case are very simple. The appellant was employed, up to the time of the offence, by an electronic factory in Kwun Tong. In a moment of greed he took a 'cassette' deck valed $32 from his employer. On his way home he was caught by a constable. When he was searched the constable found the 'cassette' deck in his travelling bag. He was arrested. When charged he pleaded guilty. Upon conviction the learned magistrate asked for a Probation Officer's report the contents of which are very favourable to the appellant. There is no doubt that the appellant, a young person of 16, succumbed to temptation and took from his employer a 'cassette' deck. He appropriated it for his own use. The Probation Officer says in his report that basically the appellant is a decent person who committed the offence in a monentary impulse. That is readily recognized by the learned magistrate in his Statement of Findings. The learned magistrate said:-

"In fining this young man $250.00 I took into account the nature of this offence. It is fairly common in the Kwun Tong area. I did not and do not think that it is the type of offence where a Court should exercise the powers conferred on it under Section 36 of Cap. 227. I considered the appellant's conduct merited a public expression of disapproval."

With the last remark I heartily agree. Any form of theft merits public disapproval. I am not in agreement with the learned magistrate when he said:-

"I did not and do not think that it is the type of offence where a Court should exercise the powers conferred on it under Section 36 of Cap. 227."

I shall come to this matter at a later stage. He went on in his Statement of Findings that:-

"Mr. Hung's argument did not persuade me that my sentence was wrong in principle. Instead I am strongly of the opinion that a conviction for an offence involving petty dishonesty is very relevant in deciding whether or not a person is suitable to be employed as a police officer and the fact that that conviction has or has not been recorded is not relevant."

When applying for a review of the sentence before the magistrate counsel for the appellant indicated that it was the intention of the appellant to apply to join the Police Force. Even without a conviction being recorded I am sure that the recruiting officer of the Royal Hong Kong Police Force will give any applicant a form with the question whether the applicant had committed any previous offence. The applicant who wishes to join the Royal Hong Kong Police Force has to answer that question truthfully. Even if his previous conviction has not been recorded he will have to disclose the conviction. Now I come to the magistrate's statement that he thought he should not exercise the power conferred upon him under Section 36 of the Magistrates Ordinance. Sub-section 1 of Section 36 provides that:-

"Where any person is charged before a magistrate with an offence punishable on summary conviction, and the magistrate thinks that the charge is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, the magistrate, with or without recording a conviction, may make an order either -

	(a)	discharging the offender absolutely; or
	(b)	discharging the offender conditionally on his entering into a recognizance, with or without sureties, in a sum not greater than $500, to be of good behaviour and to appear for conviction and sentence or for sentence, as the case may be, when called on at any time during such period, not exceeding 3 years, as may be specified in the order."

Refusing to exercise his discretion the learned magistrate is obviously of the opinion that this offence is not of a trivial nature. With respect I feel that this is not the only criterion. Other criteria are any extenuating circumstances. Here is a young person of 16 years old. He has, hitherto, a clear record. There was a letter of reference put before the magistrate by his employer. This letter was written after the offence had been committed. It reads:-

"This served to notify that Mr. Chow Kwong-fat, holder of Hong Kong Identity Card No. XXXXXXX is employed in this company as assembler from August 29th 1979 to December 5th 1979. Mr. Chow's services was satisfactory and his attendance was good. He tried his best to fulfill what required of him and we have found nothing to his detriment."

Apparently his employer did not take too seriously a view of that offence. This indicates how the employer looks at this transgression of the appellant's duty.

3. I have been referred to a number of cases the first being the case of Li Hok-ming v. The Queen, Criminal Appeal No. 176 of 1978. In that case Huggins, J.A. said at page 5:-

"It must be presumed, where possible, that the Legislature does not legislate to no purpose. In my judgment the purpose is clear. Where a breach of the criminal law is de minimis or there are reasons peculiar to the defendant which make punishment inexpedient, the court may discharge the defendant and order that he be treated as if he had never offended at all."

4. In the case of Au Po-lo v. The Queen, Criminal Appeal No. 226 of 1978 where the appellant pleaded guilty to a charge of theft and was fined $250. The learned Chief Justice said:-

	"The appellant appeals against this sentence and what, in fact, he asks is that no conviction be recorded.
	Various matters were urged before me in mitigation, matters which were not put before the magistrate. From what I was told in Court it appears that the appellant is a dutiful son to his parents. He is an exceptionally hard-working young man, holds a good job and is trying to better himself by studying at the Polytechnic."

And then:-

"The effect of recording a conviction in this case would weigh very heavily on the future of this appellant who is a telecommunications officer serving with the Royal Hong Kong Police Force. In the event, I allow the appeal and order that the conviction be not recorded."

5. In the case of Mak Wai-ming v. The Queen, Criminal Appeal No. 836 of 1977 the learned Chief Justice had before him another similar case where the conviction of theft was recorded with a fine of $350. The Chief Justice said the appellant told the court below:-

"	that the recording of a conviction 'might affect his future". In the Statement of Findings, the magistrate remarked that the defendant gave no supporting detail as to what his future was going to be.
	Before me, he said that he had applied for a job with the Agricultural & Fisheries Department and that the recording of a conviction would affect his chances of employment in that capacity.
	I agree with the Statement of Findings where the magistrate said that it is only in a relatively exceptional case that a conviction for a crime of this nature should not be recorded, but the appellant in this case has shown a real sense of remorse and that, together with the fact that he wishes to seek employment in a government department, is sufficient in my view not to record a conviction."

6. These are decisions of an appellate court from appeals of magistrates' decisions. They are highly persuasive. Practically all similar extenuating circumstances are present in the appeal before me. There should be no great disparity in sentences where the offences are similar, circumstances of the offender are similar. This is an appropriate case that I should follow the line of decisions from the Court of Appeal. Having regard to the fact that this a young person of 16 years has a clear record, that he has been remorseful, that the offence was committed in a moment of weakness when he succumbed to the temptation, that he intended to further his studies in an electronic institute and that he also intended, in future, to apply for a job with the Royal Hong Kong Police Force. I am going to give him a chance. As I said whether a conviction is recorded or not the Commissioner of Police will have to be informed that he has committed a previous offence in the applicant's answers in the application form. But the Commissioner will have a discretion to accept him if no conviction is recorded. Otherwise the Commissioner is bound to reject him. For these reasons I allow the appeal against sentence to the extent that the fine will stand but that there will be no record of his conviction.

(Simon F.S. Li)

Representation:

Mr. Iu (Lo & Lo) for Appellant.

Mr. Lunn for Crown.