HKSAR v. HUI KIN FAI RICKY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL NO. 635 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of unlawful opening of mail bag contrary to sections 29(b) and 38(1)(b) of the Post Office Ordinance, Cap. 98. The charge reads:-

"Hui Kin-fai, you are charged that on the 4th day of February, 1997, at platform number 2 at the Kowloon Tong Transit Railway Station, Kowloon, in Hong Kong, without lawful authority or excuse, you take a postal packet, namely a letter addressed to Grace Mok, out of a mail bag thereat, namely a postal box numbered 516."

2. The evidence against the appellant comes from Ng Kit-ha, an off duty woman police constable. While she was waiting for a train, she saw the appellant lower his head and sneak into the post box to look at the letters. She then saw him putting his hand into the post box and took out a letter. At the time the letter box was full. Having taken out the letter, the appellant looked at it both at the front and back and then raised it up to look at it under the light for about 30 seconds. After that he walked to a bench on the platform and sat down holding the letter in his hand. He put the briefcase he was carrying on his lap and opened the letter slowly. He then took out the contents of the letter and looked at them for about 30 seconds before putting them back into the envelope. The appellant continued sitting on the bench and took out the wallet from his pocket to look at it. The witness reported the incident to the staff of the MTR.

3. Later when this witness told the appellant that she was a police officer and asked him why he stole the letter, he replied that because the post box was full, he just picked it up.

4. The appellant said in his evidence that he merely picked up the letter when it fell out of the over-flowing letter box. He also called one witness, a Miss Au Siu-hang. She did not know the appellant before the incident. She came to give evidence because she saw a notice in the street in March appealing for eye-witnesses to come forward. This notice was put up by the appellant. This is what she said in her evidence:-

" Q. Can you please tell in your own words what you saw at about that time?

A. At about 20 minutes past 12, I saw a male who was wearing a pink and black wind jacket and carrying a briefcase. He was carrying a briefcase and an umbrella. Walked to the front of the letter box. I saw he was holding the briefcase and took out a letter from it and mailed it. I saw him inserting it for some time, but he failed. I saw that there were many letters in the letter box. The letters were higher than the slot of the letter box. Then an orange-yellow letter fell onto the ground. The contents of the letter were exposed. The male picked up the letter, looked at the front and the back. I saw him hesitate for a while, then he approached the bench nearby and put down the umbrella. Then he sat down, put the briefcase on his lap and inserted his letter which he intended to mail into his briefcase and he put back the contents of the orange-yellow letter into the envelope and sealed it. Then he walked in the direction of the letter box for about one or two steps. Then I saw a male MTR staff member and a woman came to his side. I saw them talking. Then the male approached the letter box and put the letter into it. Then the male MTR staff walked to the letter box and retrieved the letter from it. Then I saw the three of them had an argument. Then they went away.

Q. What did you do?

A. Continued waiting for the train.

COURT: Did you go and approach them?

A. No."

5. The magistrate dealt with her evidence at p.91 of the transcript by simply saying that he watched her demeanour carefully and did not believe her. She was a complete stranger and there is no evidence to contradict that she was not. She came to give evidence after reading a notice in the street. Again there is no evidence to suggest anything to the contrary. And given the account she gave, it was quite possible, when comparing the two versions, that the off duty woman police constable could have mistaken or misinterpreted the events. There is, in my view, enough room for a doubt to exist and the conviction therefore cannot be regarded as safe and satisfactory.

6. The appeal is accordingly allowed. The conviction is quashed and the sentence set aside. The fine, if paid, will be refunded.