Hong Kong Case Law: Decisions & Judgments

Topic

Recording of conviction

Legal area

Court

13 Nov 2020

SECRETARY FOR JUSTICE v. CMT AND ANOTHER

Citation

[2020] HKCA 939
Court

Court of Appeal
Case number

CAAR3/2020

The Magistrate erred in principle by adopting Dismissal Orders and CP Orders that gave no weight to punishment and deterrence and by mischaracterising the respondents as relatively passive when the admitted facts and video showed more active roles; care and protection orders require satisfaction of s34(2) PCJO which was not addressed; the Dismissal and CP Orders were set aside as manifestly inadequate and the Court of Appeal imposed a 12‑month probation with specified conditions on the 1st respondent and an 80‑hour community service order with conditions on the 2nd respondent balancing punish…
26 Feb 1998

HKSAR v. CHAN CHI WAI

Citation

HKSAR v. CHAN CHI WAI
Court

Court of First Instance
Case number

HCMA88/1998

The appeal was dismissed because the appellant abandoned the attack on sentence after being reassured that no criminal convictions had been recorded; the Magistrate had lawfully proceeded by admitting brief facts under s65(c), obtaining and following psychiatric reports, and appropriately imposing a four-month Hospital Order.
12 Jun 1986

THE QUEEN v. LEUNG KWAI FUN

Citation

THE QUEEN v. LEUNG KWAI FUN
Court

Court of First Instance
Case number

HCMA344/1986

It is beyond a magistrate's power to impose as a condition of a probation order that a probation officer provide progress reports to the court; when discharging a probation order for breach and imposing a training centre order the statutory procedure must be followed and the breach proved to the magistrate's satisfaction either by admission or by evidence with opportunity to cross-examine; where these procedures were not followed the Training Centre Order was unlawful and must be quashed.
10 Apr 1985

THE QUEEN v. NAM CHING SHAN

Citation

THE QUEEN v. NAM CHING SHAN
Court

Court of First Instance
Case number

HCMA277/1985

The magistrate's finding that the confession was voluntary was not disturbed; therefore the conviction was upheld. On sentencing, mitigation due to the appellant's youth, clean record and the fact that without his confession the charge could not have been brought justified allowing the appeal in part by ordering that no conviction be recorded.
5 Sept 1984

THE QUEEN v. SHUI KOK-WAH

Citation

THE QUEEN v. SHUI KOK-WAH
Court

Court of Appeal
Case number

CACC377/1984

Conviction upheld because the trial judge lawfully applied the presumption of trafficking in light of the quantity and adverse credibility findings, which this Court will not disturb; sentence substituted because, given the probation recommendation and circumstances, the Court properly exercised sentencing discretion to replace imprisonment with a Drug Addiction Treatment Centre Order and, under s.4(4) Cap.244, directed that a conviction be recorded.
18 Jan 1984

THE QUEEN v. CHAN SHUN-HONG

Citation

THE QUEEN v. CHAN SHUN-HONG
Court

Court of First Instance
Case number

HCCC1510/1983

The conviction was upheld because the magistrate's credibility findings were not clearly wrong; however, combining a non‑nominal fine with a conditional discharge under section 36 of the Magistrates Ordinance is improper, so the $250 fine was set aside, the conditional discharge (with the existing bond) was allowed to stand, and leave to appeal against sentence was granted out of time.
17 Jan 1983

YEUNG DAVID v. THE QUEEN

Citation

YEUNG DAVID v. THE QUEEN
Court

Court of Appeal
Case number

CACC1212/1982

The appeal was dismissed because the prosecution was properly brought, there were no wholly exceptional humanitarian considerations to justify non-recording under section 36, and the magistrate's sentence of a $250 fine with a recorded conviction was appropriate; the court endorsed the approach that convictions should generally be recorded except in rare cases where prosecution should not have been brought.
28 May 1981

TSE YUK LIN v. THE QUEEN

Citation

TSE YUK LIN v. THE QUEEN
Court

Court of Appeal
Case number

CACC320/1981

Because Section 36 must be applied narrowly and non‑recording of conviction should be exceptional, but the offender's youth, clear record, social welfare report and triviality of loss warranted mitigation of sentence (quashing the fine and substituting a one‑year recognizance for good behaviour), the conviction nevertheless should be recorded; appeal allowed in part to vary sentence accordingly.
6 Mar 1981

THONG CHAN SOI v. THE QUEEN

Citation

THONG CHAN SOI v. THE QUEEN
Court

Court of Appeal
Case number

CACC59/1981

Given the minor nature of the attempted bribery, the guilty plea, and exceptional personal circumstances (refugee family seeking emigration), the court exercised its discretion under section 36 to quash the magistrate's sentence and grant a conditional discharge without recording a conviction, despite the general rule that emigration is not ordinarily a reason to withhold recording a conviction.
23 Jan 1981

WONG MING-YIM (F) v. THE QUEEN

Citation

WONG MING-YIM (F) v. THE QUEEN
Court

Court of Appeal
Case number

CACC20/1981

The appellate court allowed the appeal and substituted an absolute discharge with no conviction recorded because the appellant was a 15‑year‑old first offender who showed genuine contrition and the court was satisfied mercy was appropriate despite the magistrate's deterrence concerns.