Lai Yin-ping (F) v. The Queen
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CACC000819/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 819 OF 1980 -----------------
----------------- Coram: Silke, J. in Court Date of Judgment: 8th November, 1980. ----------------- JUDGMENT ----------------- 1. The appellant was convicted on plea in South Kowloon Magistrate's Court of the offence of theft and was fined the sum of $1,000. 2. The admitted facts indicated that the appellant had gone to a supermarket, shopped and paid for items she collected. Having done this she picked up a purse valued at $12.50 at another counter and, holding the purse in her hands, walked out of the supermarket without paying for it. 3. In mitigation to the learned trial Magistrate she said this, and this only: "Repent immensely - won't do it again." 4. A large number of factors have been brought to my attention none of which were before the trial court. 5. The appellant is a married woman aged thirty three with two daughters and one son. She is a shorthand audio typist employed as an Assistant in the department of Trade Industry and Commerce at a salary of $3,100 p.m. 6. Her husband earns $2,300 p.m. Both salaries are used for the upkeep of the family, the repayment of a mortgage at the rate of $1,300 per month and the wages of a part time servant, who looks after the children, at the rate of $1,300 per month. 7. After her conviction the appellant made a report to her Head of Department. The result of that is that she is subject to diciplinary proceedings and I am informed that, in deciding whether or not to inflict punishment, the Governor will take into account the views of the court on the seriousness of the offence as reflected in the penalty imposed by the court. 8. I need hardly add that the whole thrust of the appeal is to avoid the recording of the conviction. 9. Section 36 of the Magistrate's Ordinance has caused and does, and no doubt will continue, to cause the courts considerable difficulty by reason of the words contained therein "with or without recording a conviction." 10. For my part I would gladly see them disappear for as Huggins J.A., said in Li Hok Ming v. the Queen C.A. 176/1978. "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 makes punishment inexpedient, the court may discharge the defendant and order that he be treated as if he had never offended at all." 11. While in no way derogating from that which was said by Huggins J.A. it may happen that such a person is treated as having no criminal record should he ever appear before a court again and the same order might well be made - in effect self perpetuating. 12. But the section remains and while it remains the courts must give it consideration and it is open to defendants to make ad misericordiam pleas. 13. In Au Po Lo v. The Queen C.A. 226/1978 the Chief Justice had this to say:
14. Here, while not employed in so sensitive department as the Police Force, the recording of a conviction would weigh heavily not only upon the future of the appellant but also on that of her family. 15. It was a petty offence, there was no attempt at concealment of the purse, she has as far as I am aware a clear record. 16. I can find no authority whereby the fine could be allowed to stand but the conviction be unrecorded. A magistrate is a creature of statute and if the court acts under the provision of section 36 of the Magistrate's Ordinance it can act only within the provisions of that section. 17. In the event, albeit with some reluctance, I allow the appeal, set aside the fine imposed and substituent therefore an order that she be absolutely discharged with no conviction to be recorded.
Representation: Mr. T. Kwan (Lo & Lo) for Appellant Mr. Chandler for Crown/Respondent |