Yeung David v. The Queen
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CACC001212/1982
BETWEEN:
Coram: Roberts, C.J. Date: 17th January, 1983. ----------------- JUDGMENT ---------------- Preliminary 1. This is an appeal by David Yeung against the sentence imposed upon him by a magistrate. The appellant pleaded guilty to a charge of theft from a vehicle, and was fined $250, a conviction being recorded against him. 2. Before imposing this punishment, the magistrate called for a probation report. This was in terms very favourable to the appellant, but the probation officer concluded that the appellant, in view of his good behaviour and past record, should be given a chance to reform himself and recommended that supervision by a probation officer could be dispensed with. Facts 3. The appellant, who was born on the 30th August, 1961 and was thus a little over 21 years' of age at the time of the offence, was seen by police officers at about 2 o'clock in the morning of 12th November, 1982, in a car park at Shatin with the first defendant, who was jointly charged with him. 4. The police officers saw the two defendants acting in a suspicious manner alongside a car and went towards them. The defendants entered the first defendant's car and started to drive off. They were stopped by the police officers and questioned. They admitted that two wheel caps and four wheel rims, which were found inside the rear boot of the car had been stolen from another vehicle in the same car park, by the use of a screw-driver. 5. On the face of it a fine of $250 for a theft of this kind from a motor vehicle in the early hours of the morning is a perfectly proper one, notwithstanding the age of the appellant and his previously good record. 6. Mr. Cheng argued on his behalf that the fine, and the recorded conviction, must necessarily seriously prejudice the appellant's future. No doubt it will. But this can hardly of itself be a sufficient ground for the exercise of the Court's discretion under section 36 of the Magistrates Ordinance not to record a conviction. 7. Inevitably, with a section of this nature which confers an unfettered discretion on the courts, there will appear to be a degree of inconsistency in the manner in which different magistrates and judges apply it. In some cases, for example Li, J. in Criminal Appeal No.67 of 1980, the judge appears to have approved a fairly wide use of the power, as did Briggs, C.J. in Criminal Appeal No. 836 of 1977. 8. Huggins, J., however, in Criminal Appeal No. 176 of 1978, states it as his view that the power not to record a conviction should be exercised sparingly. And Silke, J. in Criminal Appeal No. 320 of 1981, dealing with an appeal by an 18 year old girl who had stolen goods worth $26.50 from a super-market, set out his approach as follows -
9. He ordered that a conviction should be recorded in that case. 10. I consider that the approach of Silke, J. is the correct one and that a conviction should be recorded save where the court feels that no prosecution should have been brought. 11. However, I should not like magistrates to think that this closes the door to other cases in which the humanitarian considerations are overwhelmingly strong, notwithstanding that it was perfectly proper to have brought the prosecution. 12. In this case, the prosecution was properly brought.. There are no humanitarian considerations of a wholly exceptional nature. I see no ground for interfering with the magistrate's order, which I regard as correct. The appeal is therefore dismissed. Representation: Mr. Cheng Huan, Derry Wong (P.C. Woo & Co.) for Appellant D. Lyons, Crown Counsel, for Respondent. |