HKSAR v. GAMINI PAHALAWATTA

HCMA1133/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1133 OF 1999

(ON APPEAL FROM SPCC6209/1999 -

FORMERLY KNOWN AS SKCC2178/99)

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J U D G M E N T

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1. The appellant was charged with the offence of Attempted Theft, contrary to section 9 of the Theft Ordinance, Cap.210, and section 159G of the Crimes Ordinance, Cap.200, Laws of Hong Kong. The particulars alleged that the appellant, on 3 August 1999, at Kowloon West, (inside a train compartment of Mass Transit Railway towards Central near Tsim Sha Tsui Station), in Hong Kong, did attempt to steal one 'Motorola' CD928 mobile phone, the property of Lam Chi-chung. The appellant pleaded not guilty to the offence and was convicted after trial. The sentence imposed was 15 months' imprisonment. The appellant sought to appeal against both the conviction and sentence.

2. The prosecution had called three witnesses. The victim Lam Chi Chung ("PW1") gave evidence first and the other witnesses were police officers. The gist of the prosecution case was as follows.

3. On the day in question at about 5 pm, PW1 was waiting on the platform of the MTR station in Mongkok. Later he boarded the train. At the time, his mobile phone was placed inside a case attached to the left side of his waist. He was actually aware of the presence of the appellant before boarding the train. Later, inside the train compartment, PW1 again noticed the appellant who sat to his left. When he heard some sound, PW1 said he turned and saw the appellant using his left hand to get hold of his mobile phone. When he was about to cry out, someone shouted at the appellant saying "What happened?". At this juncture, the train had arrived at Tsim Sha Tsui Station and the appellant dashed out of the compartment. PW1 also left the train. He saw the appellant being stopped by the police on the platform. He identified the appellant to the police.

4. According to the police officers' evidence, they were, at the material time, patrolling on the Mongkok platform. They saw the appellant who was walking about and looking around. He missed two trains. Later, the appellant followed PW1 and boarded the train. The officers also boarded the train. Inside the compartment, the officers saw the appellant taking the seat next to PW1 on the left side. When the train was approaching Tsim Sha Tsui Station, the appellant used his left hand to open PW1's phone case and try to take out the mobile phone by holding onto the antenna of the phone. One of the officers asked the appellant what he was doing. When the train door opened, the appellant dashed out but was caught by one of the police officers.

5. The appellant elected to give evidence at the trial. What he said was that on the day in question, he boarded the train at Sham Shui Po Station and arrived at the Tsim Sha Tsui Station at around 5:20 pm. During the journey, he was sitting at a corner and did not attempt to take any person's mobile phone. Then he got off the train and was on the way to the exit. Suddenly a person claiming to be a police came to ask for his identity card. He raised some queries but was later taken to the police room inside the MTR station. He denied ever having waited at the Mongkok platform and he did not dash out of the train at Tsim Sha Tsui Station.

6. The appellant had a clear record while the victim, PW1, had two previous convictions. One was conspiracy to rob, which was some 15 years ago, and the other was trafficking in dangerous drugs in 1996. Having assessed the witnesses and the evidence, the learned magistrate came to the conclusion that the appellant had committed the offence by trying to steal the mobile phone from PW1's phone case and he was the same person arrested by the police on the platform.

7. Counsel for the appellant raised two main grounds of appeal. He argued that the learned magistrate had failed to give a proper assessment of the evidence and if she had done so, she would have accepted the evidence of the appellant and acquitted him. However, counsel acknowledged that the appeal on conviction turned entirely on a consideration of the evidence.

8. The specific points relied on by the appellant were, in short, as follows :

1. The problem of identification, particularly regarding the discrepancies between PW1's description of the thief and the appearance of the appellant;

2. Inherent improbability of the account as to why the police officers would actually fail to stop the appellant from running out of the compartment;

3. Doubt as to why it took several minutes before PW3 could join PW2 on the platform;

4. Contradictory evidence from the police officers regarding who had prepared the sketch;

5. Different versions as to whether the train was crowded given by PW1 and the police officers;

6. Despite the 'Berrada' direction, the learned magistrate had not really taken into account of the appellant's good background;

7. PW1's credibility should be in doubt in view of his criminal convictions.

9. I am grateful to counsel who had prepared an excellent skeleton submission which contained a comprehensive analysis on all the grounds raised. In conclusion, he submitted that there must be a reasonable doubt in the circumstances. One could see that the main arguments advanced by the appellant were actually that either the appellant had been wrongly identified or that the incident was a fabrication by PW1 and the officers.

10. As I see it, the difficulties regarding the submission on wrongful identification was that the appellant was not just seen and identified by PW1, he was also seen and identified by two police officers. Furthermore, according to PW2, when he was chasing the appellant out onto the platform, he had not lost sight of him before stopping him. The challenge on identification may well be stronger if the prosecution case depended either on the evidence of PW1 or the officers alone. However, in the present case, the learned magistrate had apparently accepted the combined effect of the evidence of PW1 and the two officers on the identity of the culprit.

11. Counsel raised the possibility of deliberate fabrication against the appellant. It was argued that if there was any attempt to fabricate, the details that PW1 was able to supply with accuracy, e.g. the clothes worn by the appellant, or his skin colour and ethnicity, could easily have been fed to him by the police officers. Hence the suggestion was that PW1 could have made a mistake and yet the police taught him what to say in order to identify the appellant. One would justifiably ask why the police had to do that in the circumstances. Counsel had raised a possible scenario in his written submissions at paragraph 31, which states :

"When the evidence is considered as a whole it raises so many question marks that the court must be left with a lurking doubt as to whether the prosecution witnesses were telling the truth and that the Defendant is in fact an innocent man who was the victim of a vindictive reaction by a discountenanced plain clothes police officer whose authority was questioned by a dark-skinned foreigner."

However, I could find no evidential basis to support this contention.

12. Having seen and heard all the witnesses, the magistrate was entitled to form a view regarding their credibility. She accepted the account of the prosecution witnesses and her decision to convict was supported by evidence. The magistrate might not have directly dealt with all the discrepancies, however, she did give a sufficient assessment of the evidence. She was aware of the various issues raised by defence counsel in his final submission regarding the state of the evidence. Having considered the submissions made by both sides, I would agree with the respondent. I could find no reason to disturb the findings and conclusions made by the magistrate. There was no lurking doubt in the circumstances. The appeal on conviction must be dismissed.

13. However, regarding the sentence, while I agree that in an ordinary case of pickpocket, 15 months, or even more, would be the right starting point. But here, in view of the appellant's background, there was strength in the submission that it was an isolated incident, and given the fact that the appellant had a clear record, some discount could have been given. I therefore had allowed the appeal on sentence and substituted the 15 months with a term of 12 months.