Kam Chung Fai v. The Queen
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CACC000787/1980
----------------- Coram: Liu, J. Date of Judgment: 14th October, 1980 ----------------- JUDGMENT ----------------- 1. Some time in April, this year, the appellant went for a swimming in Deep Water Bay. After the day's excursion, he found a gold necklace in the changing room. On returning home, his mother told him that it was not real gold but fool's gold. Thereafter, the appellant consulted his co-defendant in the court below. As a result of the consultation, the gold necklace was pawned on the 22nd April in a pawnshop in Aberdeen Main Road. 2. On the 3rd of July, the second defendant in the court below was arrested. Upon enquiries made by police officers, the gold necklace was retrieved. 3. Before the learned magistrate, the appellant was charged with theft of the gold necklace in April, 1980 at Deep Water Bay Beach, and the second defendant was charged to have handled stolen property on the 22nd of April. The appellant pleaded not guilty, but he was convicted. 4. Before this court, counsel for the appellant abandoned his appeal against conviction. I simply need to dismiss his appeal against conviction formally. 5. Before the learned magistrate, the appellant testified that he would feel embarrassed to turn over the article he found to the police as he had been told it was fool's gold. But that story of the appellant was not favourably received by the learned magistrate, particularly, when on the 22nd of April, the appellant played an active part in the pawning of the necklace in Aberdeen. 6. The learned magistrate was invited by solicitor representing the appellant to exercise his discretion under section 36 of the Magistrates Ordinance. From the records before this court, there is no reference to any request made on behalf of the appellant not to have his conviction recorded. 7. The appellant was conditionally discharged for twelve months, bound over in the sum of $200.00 and the condition imposed was not to commit any further offence during the period of twelve months. 8. It cannot be assumed that the learned magistrate was not conversant with all the provisions in section 36; nor can neglect be properly imputed to him for any failure to exercise his discretion in not recording the appellant's conviction. 9. Before this court, it was submitted on behalf of the appellant that he is a 14½ years' old student, a boy of otherwise previously good character. It was also submitted on his behalf that he has learnt a good lesson from these proceedings, not in one court but in two. I am told by counsel, whose statement I accept that the appellant is evidently in shock. 10. Mr. Egan on behalf of the Crown submitted that this was a matter within the discretion of the learned magistrate, but whilst he was not prepared to join force with counsel for the appellant, he readily conceded that the circumstances in this case would leave in this court a reasonably unfettered discretion. Appeal against sentence to that extent did not, for that reason, seem to have been strenuously opposed. 11. I agree with counsel for the appellant, and for all the personal circumstances of the appellant, his family background, his remorse, and the concern of his family reflected if only in the institution and prosecution of the present appeal, I am just persuaded to, after concerned consideration, allow the appeal to the extent that the conviction of the appellant be not recorded. And I am sure the parents of the appellant will endeavour to exercise more restraint on his course of conduct in the immediate future. The order I make is:
Representation: Mr. Y.C. Mok instructed by Messrs. W.K. Lore for Appellant. Mr. Egan, counsel for the Crown/Respondent. |