R. v. PHAM VAN TRUONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1038 OF 1996

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J U D G M E N T

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1. On 15th August 1996 at Tuen Mun Magistrates' Court, the Appellant was convicted, after pleading not guilty, of an offence of attempted theft. He was sentenced to 10 months' imprisonment. He now appeals against his conviction.

2. The prosecution's case was based on the evidence of two police officers, PW1 and PW2. PW1 had been keeping observation on a bus stop in Tuen Mun. During a period of observation which lasted 11 minutes, he saw 3 buses arrive at the bus stop and then leave. On each of the those occasions, passengers got off the bus and some got on. During the whole of this period of observation, PW1 saw a man by the bus stop. While the second bus was stationary at the bus stop, the man stretched his hand towards the open window of the bus in the direction of a woman who was seated on a bench seat inside the bus with her back to the window. The woman was wearing a gold necklace. However, the bus drove off before the man could get his hand completely through the window. While the third bus was stationary at the bus stop, the man again stretched his hand through the open window of the bus, again towards a woman who was seated on a bench seat inside the bus with her back to the window. She was also wearing a gold necklace. This time the man got his hand completely through the window, but the woman leaned forward and the bus drove off.

3. The second of these incidents was observed by PW2 who had been alerted by PW1 to what PW1 had already seen. However, he did not go into what he saw in the same detail as PW1 had. His evidence simply was that he saw the man put his hand into the compartment of the bus.

4. On these facts, the magistrate concluded, not surprisingly, that the man was trying to snatch the necklaces of the women. Indeed, what PW1 saw would have supported a charge of attempted robbery rather than a charge of attemped theft, but the magistrate cannot be faulted for concluding that at the very least the man was guilty of attempted theft.

5. The principal issue which the magistrate had to address was whether the Appellant was the man who the police had observed. The Appellant did not give evidence, and although that did not in any way support the prosecution's case, it meant that the only evidence which the magistrate had to evaluate was that of the two police officers. The evidence of PW2 was that he had been about 20 metres away from the bus stop, and that after the incident which he observed the man ran towards him. He chased the man and eventually caught him. The man he caught was the Appellant. He claimed that he had never lost sight of the man. As for PW1, he had been viewing the bus stop through a pair of binoculars from the roof of a nearby building. He was about 25 metres from the bus stop. He had the man under constant observation during that time. It was shortly before 8.00 p.m., and although it was dark the street lights were on. After the final incident, he left the roof of the building. By the time he got to the street, PW2 had already caught the Appellant. PW1 recognised him as the man who he had observed.

6. The magistrate gave himself a Turnbull direction. He concluded that it was safe to rely on PW1's evidence as to identity. The correctness of PW1's identification of the Appellant was corroborated by the fact that the man caught by PW2 had run away from the scene, and that PW2 had never lost sight of him. In those circumstances, the magistrate's conclusion that the Appellant was the man who had been trying to snatch the necklaces cannot be criticised, and there are no grounds for ordering what the Appellant wishes me to order, namely a new trial. For these reasons, this appeal must be dismissed.