R. v. TO HO BON

IN THE HIGH COURT

1994, No. 1491
Magistracy Appeal

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J U D G M E N T

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Litton, V.-P.:

1. The appellant To Ho-bon was convicted on 19 October 1994 by Mr Holmes in the North Kowloon Magistracy on one charge of attempted theft. It was a case of pick-pocketing. He was sentenced to 9 months' imprisonment. The appeal is now confined to sentence. He seeks leave to appeal out of time.

2. The offence occurred on 3 April 1994 at the junction of Fa Yuen Street and Bute Street in Mongkok, at a busy time of the afternoon. There were police officers about, on plain clothes duty. The appellant was seen to act suspiciously. The police officers followed him and caught him when he had his hand in the vest pocket of a young female.

3. The prosecution for that offence resulted, as I have said, in his conviction on 19 October 1994. The magistrate then remanded the appellant in custody pending a probation report. The probation report painted a very favourable picture of the appellant. Although he had one previous conviction, committed about 10 years ago for loitering, he has since then led a blameless life. The loitering offence occurred in his earlier twenties. The appellant is now 36 years of age. He got married in 1986 and lives with his family, consisting of his wife and two young children, in a housing estate. He has regular employment, serving as a cook at a restaurant, earning $9,500 a month. The probation officer formed the impression that he was a good family man who devoted his spare time to his family; the pick-pocketing offence committed in April last year was wholly out of character.

4. Initially, the appellant appealed only against his conviction, maintaining his innocence in the teeth of overwhelming evidence. Rather belatedly he seems to have begun to change his mind. He sought leave from the magistrate to appeal against sentence out of time and this was refused. With the assistance of solicitors he then made an affirmation on 7 April. It is dated 1994. I assume that is a mistake and it must be 1995. In it he says:

"2. I have been under the belief that I can successfully appeal against my conviction for the reason that I do maintain that I am innocent. Accordingly, I lodged in person the appeal against conviction only after I was granted bail by Mr M.N. Holmes on 2nd November, 1994."

5. It is clear that, even as at the date of that affirmation, the appellant's attitude was not one of remorse for what he had done; he was still seeking to contest the conviction. It was only in this court this morning that the appellant formally abandoned his appeal against conviction. The question I have to decide is whether in these circumstances it is proper for me to exercise my powers under section 114A of the Magistrates Ordinance to give to the appellant an extension of time for lodging his notice of appeal against sentence.

6. When the court's discretion under s114A is invoked, there must be good reasons put forward. The reason as far as I can gage from the affirmation is that it was only belatedly that the appellant appreciated that the grounds for appeal against convictions were slim. What it does mean is that he made a deliberate election earlier on and chose not to appeal against the sentence at the time when his appeal was first lodged. I also weigh this in the scales: because the appellant failed to lodge an appeal against sentence within the time permitted, there are no reasons before me from the magistrate as to why he thought a sentence of nine months' imprisonment was appropriate.

7. As Mr Cheung, Crown Counsel, submits, the sentence is well within the usual tariff for these cases, and can be said to be lenient. Nothing before me suggests that the magistrate has not taken fully into consideration all the very favourable factors which appear in the probation report. Undoubtedly this is a case where the magistrate could have exercised his discretion to impose a suspended sentence pursuant to s109B of the Criminal Procedural Ordinance.

8. The offence does appear to be out of character. The appellant has the support of his employer, a fact already known to the magistrate. In the probation report it is said that the employer, despite the conviction, is prepared to continue to employ him.

9. There was adduced before me this morning a further letter from the employer which testifies to the fact that he is a diligent worker, is helpful and gets on well with his colleagues. The employer also considered the offence wholly out of character. The question I have to decide is whether there is enough material before me to enable me to exercise my power under s114A to extend the time for the appeal against sentence, and then to allow the appeal. With some reluctance I have come to the view that the circumstances are insufficient. Nothing suggests that all the matters which have been urged before me were not fully considered by the magistrate. The grounds for extension of time are insubstantial. It would appear that at a very belated stage the appellant began to show remorse for what he has done; up to the opening of the appeal there has been no formal abandonment of his appeal against conviction. In these circumstances the application for extension of time to appeal against sentence is dismissed.

10. The appeal against conviction was abandoned when the case was called on.