R. v. NG TZE LUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1514 OF 1994

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J U D G M E N T

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1. This is an appeal from Mr. Bryan Chau at North Kowloon Magistrates' Court where this Appellant was convicted of theft. It was theft of about HK$40,000.00 from Kentucky Fried Chicken. It was said that he falsely keyed in required data that the customer's orders or transactions had been cancelled or voided and appropriated over a period of time some $40,000.00.

2. This was denied by him. He was saying that he was replacing money which he had had to put in for what he called shortfalls. Mr. McNamara on behalf of the Appellant takes a number of points, but it is only necessary to deal with one point, namely that nowhere in the magistrate's decision and his reasons, does he demonstrate that he has taken into account the Appellant's good character. He does not refer to it.

3. Mr. Chan on behalf of the Crown does not seek to uphold this conviction and cites a recent decision of Keith J. in Wong Fu Cheong on the 26th July 1994 when the judge dealt with this point. Although it is not necessary for a magistrate to give himself or herself a full Berada or Vine direction, the magistrate must demonstrate that he has indeed taken the Appellant's good character into account. This did not occur here, and therefore is a fatal flaw to the conviction. The appeal is allowed.