THE QUEEN v. LEE WAI KWOK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 50 OF 1985

BETWEEN

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REASONS FOR JUDGMENT

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1. The appellant having appealed against the conviction for burglary imposed upon him in the Magistrate's court indicated through his counsel that he no longer was pursuing that appeal. His appeal against conviction was, therefore, dismissed.

2. On an earlier hearing when this matter was before another judge, the judge had granted leave to appeal against sentence. For reasons beyond the control of the appellant, this appeal was adjourned on a number of occasions, and on one of those occasions, I took the opportunity to call for a probation officer's report.

3. When the appeal was eventually heard before me, I had a very detailed and careful report from the probation officer to assist me, which emphasized the excellent record which the appellant had in the past and which recommended probation.

4. Counsel for the appellant admitted that he could not attack the sentence as wrong in principle, but he urged me to take the same course as that taken by the Court of Appeal in Criminal Appeal No. 247 of 1984 by granting the application out of clemency. He urged me to place the appellant on probation as recommended by the probation officer.

5. Taking into consideration the fact that the appellant had been in custody some five months, that all the items stolen in the course of the offence had been returned to the victim, that the appellant had no previous convictions, but on the other hand had an excellent record for hard work, taking into account the appellant's your age and family commitments, I considered that it was not only in the defendant's interest, but also in the interest of the public that some measure should be adopted which would enable the appellant to continue running the business he had built up while at the same time Laving the benefit of the guidance and supervision of a probation officer. I considered a two years' suspended sentence as a possible alternative and considered that a probation order of two years would reach much the same result, but enable the appellant to have the guidance and supervision of a probation officer which he apparently needs.

6. For these reasons, I allowed the appeal and with the appellant's consent (he being over 14 years of age), placed him on probation for two years on the usual conditions.