Li Kam Wai v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 176 OF 1973

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Coram: Huggins, J.

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JUDGMENT

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1.  The Appellant was charged in the Juvenile Court with theft, but the particulars clearly alleged attempted theft and it was attempted theft of which he was convicted. To this extent the Notice of Appeal is wrong and I hope all the records are not also wrong.

2.  The evidence was that the owner of a mobile van –which was an ice-cream van – parked it in the street outside his home. He left it at about 7 p.m. and at about 8 p.m. he looked out of the window on the 14^th floor and saw someone meddling with his vehicle. He immediately went down to the street and his evidence was that he found the Appellant leaning into the van with a screw driver, a chisel and a hammer in his hand. He said that two window panes were broken and a window lock was damaged. It appeared to him that the Appellant was trying to climb into the van through the window.

3.  The Appellant’s story was that he was passing by with his bicycle, that he stopped and put his bicycle down and was merely watching the van when the man came up and accused him of stealing from the van. Before me the Appellant has admitted that he was peering into the van.

4.  The learned magistrate came to the conclusion that the evidence of the prosecution was to be believed and that the only reasonable inference was that the Appellant was trying to steal. There was evidence upon which she could come to that conclusion and it is impossible for me to say that she was wrong. She then called for a probation officer’s report and had a report from the Superintendent of the Begonia Road Boys’ Home. The Appellant had a previous conviction for picking a pocket and was placed on probation for two years on 15^th April 1970. After he appeared in court for the first time on the present charge he did not answer to his bail and when he was subsequently arrested his story was that he had run away to China because he was afraid that he was going to be punished severely in Hong Kong. He was then sent to Lowu by the Chinese Authorities and made his way home from there.

5.  There learned magistrate considered all the circumstances with her customery thoroughness and came to the conclusion that this young man required discipline. I think she came to the right conclusion. I have heard the Appellant and I have heard his mother, but I do not find anything in what I have been told which would enable me to interfere.

6.  The appeal is dismissed.

3^rd April, 1973