HKSAR v. LEUNG WAI LEUK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 855 OF 1998

(On Appeal from ESC 2570/98)

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J U D G M E N T

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1. This Appellant was found guilty after trial of Theft of a telephone by finding. He found the telephone in a tram and appropriated it to his own purposes. When first questioned by the police he lied as to how he came into possession saying he purchased it, later, he changed that statement.

2. The Magistrate in a very thorough Statement of Findings considered all the matters relating to this case. He indicated that he had given himself a Lucas direction and although it is submitted by counsel for the Appellant that he did not adequately direct himself in this regard, I find that he did. Further, it was submitted that he did not take into account the fact that what was given to the police by this Appellant, was what is called a mixed statement, containing both exculpatory and inculpatory parts.

3. Again, I am satisfied that the Magistrate was well aware of the status of the cautioned statement; that he was aware of its mixed nature and that he took that into account in reaching his almost inevitable conclusion that this Appellant had committed the theft.

4. Accordingly, I dismiss the appeal against conviction.

5. In respect of the appeal against sentence, Appellant was sentenced to 3 months for this theft. I should point out that he has 7 previous Theft convictions, a matter that was known to the Magistrate. Most of those are for offences of pickpocketing.

6. The Magistrate's sentence appears to be a lenient one given that this conviction was reached after a full trial and I do not propose to disturb it. The appeal against sentence is dismissed.