R. v. FONG WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 505 OF 1995

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J U D G M E N T

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1. The appellant was charged with (a) robbery and (b) illegally remaining in Hong Kong without the authority of the Director of Immigration. He pleaded to the (b) charge. The (a) charge was later amended to Theft but he was acquitted after a trial. He was sentenced to 15 months' imprisonment on the (b) charge. He appealed against sentence.

2. The appellant submitted that he was beaten in prison and was injured but he was not given medical treatment. He said that he requested specialist treatment but was refused. He asked that his sentence be reduced for him to go back to China for medical treatment.

3. The sentence of 15 months was within the guidelines in R. v So Man King. There was no evidence to support the claim by the appellant. His submission did not disclose any circumstances amounting to strong humanitarian considerations for a departure from the guidelines. The appeal against sentence was dismissed.

4. When the appeal was heard, the appellant said that he had HK$1,040 on his person when he was arrested but this was confiscated by the learned Magistrate at the trial. He asked that the order be set aside because he had been acquitted of the theft charge.

5. Mrs. Crabtree for the Crown indicated that an enquiry would be made in respect of the matter. The matter was adjourned until today.

6. Mrs. Crabtree now informed me that the victim of the theft charge had lost $1,060 when the theft occurred. She identified the appellant as the culprit and on his person $1,040 was found. This was believed to be part of the proceeds of theft. The appellant gave evidence that the money was earned by him. The appellant was acquitted because the victim's identification was not sure. Mrs. Crabtree very fairly indicated that in those circumstances, the money could not have been confiscated under the Criminal Procedure Ordinance. She submitted that the court should allow the appellant's appeal against the order of confiscation out of time and order the return of the money to the appellant.

7. The Crown having conceded that the money could not have been subject matter of confiscation, the appeal was allowed and the order of confiscation was set aside. The sum of $1,040 was to be returned to the appellant.