THE QUEEN v. CHENG KIT CHIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1034 OF 1989

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BETWEEN

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J U D G M E N T

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1. The Appellant pleaded not guilty to two charges one of criminal damage, and the other of robbery.

2. The prosecution case was that the Appellant entered a 7-Eleven Store in Argyle Street in Mongkok at about 9.45 one evening to buy alcohol. He bought a bottle and became obstreperous with the shop assistant, eventually broke the bottle of brandy that he bought, and then damaged some noodles and a box of chocolates and used a BBQ fork to threaten the counter assistant. It was out of this act that the charge of robbery arose. He was convicted on both charges and sentenced to imprisonment for 3 months in respect to the criminal damage and 12 months in respect of the robbery. At the time he as serving a sentence of imprisonment in respect of some other offence, and the magistrate ordered that the sentences in respect of criminal damage and robbery be served concurrently with each other but consecutively with the sentence he was then serving.

3. In respect of the robbery offence the Appellant's defence was that he was drunk at the time. The magistrate held that as it was self-induced drunkenness, it could not amount to a 'defence', to a criminal offence. In relation to the offence of robbery which requires a specific intent it is conceded by the Crown that Mrs. Spruce's submission that this was a misdirection is valid and that the conviction for robbery cannot stand.

4. In relation to the criminal damage conviction, the appeal is concerned only with the sentence. It is submitted that a sentence of imprisonment for 3 months, bearing in mind the nature of the offence committed by this appellant, was manifestly excessive.

5. I agree. I think that the conduct of the Appellant on this occasion was loutish behaviour, no doubt induced by his consumption of alcohol. It was, however, conduct for which he has been sufficiently punished when one forgets, as one now has to forget, the circumstances which led to the laying of the charge of robbery.

6. In those circumstances, I think that the appropriate penalty is a fine. I therefore quash the sentence of imprisonment for 3 months and in lieu thereof substitute a fine of $1,000. I allow the Appellant 14 days to pay that fine and order that in default of payment he be imprisoned for one month to be served consecutively with any other sentence he is then serving.

7. The appeal against conviction in respect to the robbery offence is allowed, and the conviction and sentence quashed.