R. v. LEE SHIU CHUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1183 OF 1996

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J U D G M E N T

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1. The appellant was seen outside 183 Po Tung Road entering the storeroom of a restaurant by PW1 the manager of the restaurant. PW1 went over to the storeroom and saw the appellant leave the room. PW1 questioned the appellant who replied that he was waiting for someone. PW1 checked the storeroom and found nothing missing or had been tampered with. The appellant subsequently went to the next door premises, opened the gate, walked through the yard and tried to open the door of the premises. Some time later, the appellant was arrested by the police outside certain premises in Tan Cheung Village. PW1 identified the appellant as the person who had entered the storeroom.

2. The appellant was charged with burglary under s.11(1)(b) i.e. having entered the premises as a trespasser, attempted to steal therein and with going equipped for stealing. He was convicted of both charges. He now appealed against the burglary conviction only.

3. The magistrate, on the facts stated above, found the appellant had entered the storeroom as a trespasser with intent to steal.

4. Mr Chan submitted that there was no evidence to support the conviction under s.11(1)(b) since there was no evidence of any act amounting to attempt to steal anything inside the storeroom. He submitted that on what the magistrate found, the appellant could only be convicted of burglary under s.11(1)(a) i.e. entering the premises as a trespasser with intent to steal.

5. The question here was whether the magistrate could convict the appellant under s.11(1)(b). If he could not, was he able to convict the appellant under s.11(1)(a) as an alternative to the offence charged.

6. R. v. Whiting (1987) 85 Cr.App.R.78 held that a charge under the English equivalent of our s.11(1)(b) could include an allegation under s.11(1)(a) so that an offence under s.11(1)(a) was an alternative to an offence under s.11(1)(b). That being the case, the court may convict under s.11(1)(a) when the charge is under s.11(1)(b) if there is evidence to support that conviction.

7. Section 51 of the Criminal Procedure Ordinance enables the court to convict on the alternative offence of s.11(1)(a) in the present case. Unfortunately, the magistrate did not convict the appellant of the alternative offence. He convicted him on the offence as charged. That was not supported by the magistrate's own finding. The conviction therefore could not stand.

8. However that is not the end of the matter. Section 119(g) of the Magistrates Ordinance Cap.227 enables this court sitting as an appellant court in an appeal from the magistrate to convict the appellant on the facts as found by the magistrate of the offence under s.11(1)(a).

9. Section 119(g) states :

"where an appellant has been convicted of an offence and the magistrate could on the complaint or information have found him guilty of some other offence, the judge may, if he considers that the magistrate must have been satisfied of facts which proved the appellant guilty of that other offence, substitute for the conviction recorded by the magistrate a conviction of that other offence and pass such sentence in substitution for the sentence passed by the magistrate as may be warranted in law for that other offence."

10. Accordingly I substituted a conviction of the offence of burglary under s.11(1)(a) for the conviction recorded by the magistrate and set aside the sentence imposed by the magistrate and in respect of the substituted conviction, I passed a sentence of 9 months imprisonment.

11. Before I passed sentence, Mr Chan submitted the substituted offence was marginally less serious than the offence originally charged against the appellant and the sentence should be adjusted accordingly.

12. Mr Leung for the prosecution submitted that the facts were the same and both offences were burglary and there should be no distinction in sentencing on the substituted conviction.

13. I agreed with Mr Leung that I should pass the same sentence as that passed by the magistrate on the original offence and I did so accordingly.