Leung Chi Kuen v. The Queen
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CACC000764/1980
----------------- Coram: Liu, J. Date of Judgment: 16th October, 1980 ----------------- JUDGMENT ----------------- 1. The appellant is 22. At the time when the offence was committed, he was 21. He took a carton of 'Kent' cigarettes and a tube of glass cement from a supermarket, and having helped himself to them, he had them concealed in a paper bag together with other goods which he paid for. 2. Before the learned magistrate, he pleaded guilty. He claimed to have "lost self-control" and implored the court not to record his conviction. He was fined $1,000 and had his conviction recorded. On his application for a review, his solicitor submitted that he was in fact a non-smoker and that he was minded to be enrolled in a school in Canada, having saved $18,000 for that purpose. His personal circumstances and background were fully brought to the attention of the learned magistrate. The application for review was denied, and the sentence was confirmed. 3. Before this court through counsel, the appellant produced a letter from his employer, and a letter from the Commander of the Civil Aid Services Mountain Rescue Unit. Documents were also adduced to the effect that his application for enrolment had been accepted by a school in Canada. On his behalf, counsel submitted that there was a likelihood that his application for a Canadian student visa might not be favourably received. It was conceded that the appellant would be duty bound to disclose his conviction to the authority, but it was urged that a discretion, if exercised pursuant to section 36 of the Magistrates Ordinance for not recording his conviction would reflect the view of the bench as to the trivial nature of his offence. 4. In the light of his personal circumstances and background, the learned magistrate took the view that having imposed a fine he had no power not to record the conviction. The learned magistrate was further of the opinion that this conviction did not fall within any of the exceptional cases in which the discretion under section 36 ought to be exercised. 5. Most if not all shoplifting cases are unpleasant. This court has a fair degree of sympathy for the appellant, but the courts must be guided by principles. The question to be considered is whether the learned magistrate was wrong in principle or excessive in punishment. 6. There is evidence that this was not an offence committed on impulse. Articles were put into the paper bag and the appellant paid for some but not the articles in question. The offence was committed with premeditation. There is evidence of a sustained criminal intent. It is also mere specultation as to whether the appellant would be or would not be granted a student visa on account of a recorded conviction. 7. The learned magistrate considered this case with great circumspection, and in my view he arrived at the correct conclusion. In my judgment, there was nothing exceptional in or about this case which would merit the exercise of that discretion under section 36. Not entirely without regret, for all these reasons I dismiss the appeal against sentence. It is in the circumstances quite unnecessary for me to consider as to whether or not the learned magistrate had jurisdiction to invoke section 36, in the case of a fine, for not recording the conviction of the appellant. I therefore order that appeal against sentence be dismissed.
Representation: Mr. Sujanani instructed by Messrs. Howell & Co. for appellant. Ms. Crebbin for Crown/respondent. |