R. v. SHANAHAN KG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 94 OF 1997

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J U D G M E N T

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1. The appellant was convicted on his own plea on 3rd January 1997 of one charge of theft. The facts were that early in the morning of Christmas day 1996 the appellant was in the MacDonald Restaurant in D'Aguilar Street having, its seems, been celebrating in the area of Lan Kwai Fong with some of his colleagues from the military. A considerable amount of drink had been taken by the appellant and it was put before the magistrate, and not contested by the prosecution, that at the time of the offence he was quite drunk.

2. The victim of this offence was sitting with her boyfriend in the restaurant with a handbag on her legs and a brown paper packet on the floor beside her. The appellant took the bag from her thighs and the bag from the floor and ran from the restaurant. He was apprehended and the property recovered. He entered a plea of guilty at the earliest opportunity and there was a partial mitigation before the learned magistrate.

3. Mr McGowan before me today has argued that due to various difficulties experienced over the Christmas period by the military forces in their preparation of the mitigation in this matter, the usual and expected references as to character were omitted. They have been obtained and I have consented to see them in evidence.

4. From those references which were not before the magistrate, a picture emerges of the appellant which I could describe no better than is put by Lieutenant Colonel Tanner in his reference which reads :

"This incident involving Lance Corporal Shanahan was an aberration from a soldier from whom I would normally expect the highest qualities and standards. He is immensely ashamed of his actions and regrets the discomfort and worry that has been caused to the victim of his crime. He is also fully aware of the shame he has brought upon his Regiment and that he must be punished in the proper way."

5. I am informed that the appellant joined the army at the age of 16½ and to quote from Lieutenant Colonel Tanner :

"His personal qualities of immense loyalty to the Service, hard working approach to his job, coupled with excellent physical fitness and natural leadership ability, have enabled him to exemplify the characteristics of a top grade Non Commissioned Officer."

A custodial sentence in respect of this charge will mean his discharge from the army, a loss of pension and, in all probability, the loss of a house which he is currently purchasing for his impending marriage.

6. Had the learned magistrate had before him the character references and the background which I now have, it may be that he would have taken a different view to the sentence that he passed. I cannot say, on the material that he had before him, he was wrong in imposing an immediate custodial sentence. However, the background which is now shown to me shows a character which would justify me, and would have justified the magistrate, in considering that there were exceptional circumstances in this first offender, given his plea of guilty and given the consequences of a custodial sentence which would have warranted the imposition of a fine rather than a prison sentence.

7. The appeal is allowed to the extent that the sentence of imprisonment is set aside and a fine in the sum of $4,500 imposed in lieu thereof.