HKSAR v. WONG KAM TONG

CACC 522/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

CRIMINAL APPEAL NO. 522 OF 2005

(ON APPEAL FROM DCCC NO. 674 OF 2005)

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REASONS FOR DECISION

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Hon Yuen JA:

1.  On 9 November 2006, I gave leave to the Applicant to appeal against conviction.  Since then an official transcript of the proceedings has been prepared which has enabled me to provide the reasons with quotations from the official transcript.

2.  On 3 December 2005 the Applicant was convicted in the District Court of 3 charges, the 1^st and 3^rd charges being theft and the 2^nd charge being attempted theft.

1^st charge

3.  It was alleged in respect of the 1^st charge that the Applicant had picked the pocket of a pedestrian at about 9:20 pm on 17 March 2005.  The prosecution case was that some police officers (including PW4 and PW6) saw that a pedestrian was about to cross a road when a taxi suddenly accelerated in his direction twice.  In taking evasive action, the pedestrian stumbled and (according to the police officers) a man suddenly appeared behind the pedestrian, then turned round and returned to the direction from which he came.   The police officers believed that the man had picked the pedestrian’s pocket and went after him.

4.  PW4’s evidence was that when he caught up with the man (whom they identified as the Applicant) he searched him, patting his waist.  The Applicant then moved his waistband up and down, and at that point a wallet fell to the ground from inside his trouser leg.  The wallet contained a Singaporean identity card and other documents identifying the owner as a Mr. Ng.  Mr Ng was later contacted by telephone and later collected his wallet at the police station.  Although Mr Ng was listed in the Schedule of Witnesses as PW1, he did not give evidence at the trial, whether oral or written.  

5.  The Applicant’s defence was that he knew nothing about the incident involving the pedestrian and the taxi as he was not the man involved.  He said he was known to PW6 as a pickpocket and that he was framed by him. 

Grounds of appeal

6.  The Applicant who now appears in person has complained of a number of matters.  He has referred to parts of the Reasons for Verdict where the judge has referred to the wrong witness.  In para. 4 of the Reasons for Verdict, the judge referred to “PW1" in connection with the 1^st charge.  PW1 was actually a witness in connection with the 2^nd charge (which concerned a different incident).  In para. 8 of the Reasons for Verdict, “PW5" was referred to when it should have been PW6.  It was suggested that the judge did this so as to connect the two charges.

7.  If that had been the only ground of appeal, I would not have been minded to grant leave.  When the erroneous references are examined in context, they appear to have been slips of the tongue, and the judge would not have been helped by the fact that the prosecution did not follow the numbering of witnesses in the Schedule of Witnesses and did not provide the judge with an amended schedule.

8.  The Applicant also says that the incident which took place on 17 March was purportedly recorded by PW4 in a notebook, but it turned out that the notebook which contained the record of the incident was not issued to PW4 until 20 March.  In this respect the judge accepted the police officer’s explanation that he did not collect a new notebook until 20 March because he was tired on 18 March and was on leave on 19 March.  This was a matter for the judge which an appellate court would be unlikely to upset. 

9.  Also the Applicant says that when the police took a statement from him immediately after arrest on 17 March, there was no reference to the wallet by way of the owner’s name or identifying marks.  Be that as it may, the fact was that a wallet did exist and the judge could not see any other reasonable explanation how the police could have come by the wallet.  Other scenarios were discarded by the judge as being unrealistic.  Again, this was a matter for the judge which an appellate court would be unlikely to upset.   

10.  The Applicant also says that there were inconsistencies in the evidence of PW4 and PW6 which the judge did not refer to and that the judge constantly interrupted his counsel when he was cross-examining the police officers.  I will deal with this ground later in this judgment.

2^nd charge

11.  The offence the subject of the 2^nd charge (attempted theft) was said to have been committed on 15 May 2005.

12.  A couple (husband and wife) was about to cross a road when a taxi accelerated towards them.  The husband lost his balance and put out his left hand on the taxi bonnet to steady himself.  At that time he felt something on his right leg and when he touched it, he saw the Applicant’s hand inside his trouser pocket.  There was then an episode when two other men came forward asking the husband to let go of the Applicant, but when the wife raised the alarm, attracting the attention of a motorcycle policeman, the other men disappeared.  This formed the substance of the 2^nd charge of attempted theft. 

13.  The judge accepted explicitly the evidence of the couple and convicted the Applicant.

Grounds of appeal

14.  In his grounds of appeal, the Applicant says that it would not have been natural for the husband to steady himself with his left hand when the taxi was coming from his right.  Further the husband’s evidence was inconsistent with the version he gave to the police officer, as he had told the police officer that he had to steady himself withboth hands.  Although the judge did not specifically deal with this inconsistency in the husband’s evidence, it obviously did not detract from her finding that the prosecution had proven the ingredients of the charge beyond reasonable doubt.

15.  The Applicant also says that the wife admitted that she had spoken with the husband about the incident.  The judge held that neither the husband nor the wife were deflected in their evidence by cross-examination and she had not the slightest doubt that their observations were accurate.   Again, this was a matter for the judge which an appellate court would be unlikely to upset.

16.  However the Applicant has also complained that the judge constantly interrupted his counsel when he was cross-examining the witnesses.  I will deal with this ground later in this judgment.

3^rd charge

17.  The offence the subject of the 3^rd charge (theft) was said to have been committed on 19 May 2005.

18.  A police officer saw the Applicant running past him and heard someone else shouting “snatching things”.  The police officer chased the Applicant and caught him with the help of an off-duty officer.  Two mainlanders then came up and told him that their watch and money had been stolen but that after they had caught a man whom they suspected of the theft, the Applicant appeared and returned the stolen items to them.  The police officer said he then asked the Applicant about the allegation without having administered a caution.  The Applicant is alleged to have admitted that he had returned the items to the mainlanders.

19.  The judge held that the police officer could testify as to what the mainlanders said as res gestae, being an exception to the rule against hearsay.  She also held that in the circumstances the police officer did not need to administer a caution, but even if he should have done so, she was satisfied that the Applicant’s admission was voluntary.

20.  In the event the witness statements of the mainlanders were then admitted in evidence under s.65B of the Criminal Procedure Ordinance. 

21.  Although there were some inconsistencies in the order of events as disclosed in the statements, the judge was satisfied that the charge had been proved. 

Grounds of appeal

22.  The Applicant objected to the admission of the mainlanders’ evidence without the opportunity of cross-examination.  However as the statements were admitted pursuant to s.65B, presumably the Applicant had not objected to the admission of the evidence within the stated time. 

23.  The Applicant also says that the police officer’s notebooks did not record that he had said anything or that the mainlanders had pointed to him.  However these are details which the judge obviously did not consider important as she found the police officer was “an exemplary witness” who was “an honest and completely reliable witness”.

24.  The Applicant also says that the mainlanders’ evidence was inconsistent as the judge accepted and that the judge was wrong in excusing the inconsistency by saying that lay persons often did not narrate events in chronological order.  This was an observation which was open to the judge and which an appellate court would be unlikely to upset.    

25.  Finally again the Applicant has also complained that the judge constantly interrupted his counsel when he was cross-examining the police officer.

Interventions during examinations

26.  The Applicant’s most disturbing complaint in his grounds of appeal is that he says that the judge had interrupted his counsel in the course of his cross-examination of prosecution witnesses and had assisted the prosecution witnesses when they were giving evidence.  The Applicant has listened to audio tapes of the trial and has himself prepared a transcript of relevant parts.  During his application for leave to appeal, counsel for the Respondent did not suggest that the Applicant’s transcription was inaccurate and I proceeded on the basis that the Appellant’s transcription (of the evidence given in Chinese) was accurate.  As I have mentioned, I have since received the official transcript of the proceedings (which were conducted in English).   

27.  Of course it is a judge’s duty to understand the evidence and this would from time to time require him/her to ask questions to clarify a witness’ evidence.  However I am concerned in the present case about the judge’s frequent interventions during examination of the prosecution witnesses and the failure to stop prosecuting counsel’s interventions as well, and how they might have been perceived by the accused, of which the following are examples:

-	Cross-examination of PW4 (DPC49895)
Q:	There is no mention of the wallet being found on the defendant’s person there, is there?
A:	And I have recorded here that he was ... yes, because he had reason to believe that earlier on, in Saigon Street ...
CT:	9.25.  That’s what it says.
A:	9.25 in the evening on 17 March 2005 in Yau Ma Tei, [etc].
(Transcript p.40)
Q:	And you photographed the defendant in the police station?
CT:	He’s already said so.
Q:	And I suggest you ...
CT:	It wouldn’t be him, anyway.  They do take photographs just as they take fingerprints.
Mr McGowan: Yes.
CT:	But it’s somebody else.
Mr Forrest: It’s done by the duty officer or someone like that.
Mr McGowan: Well I bow to many years of experience in Hong Kong.
CT:	Anyway, your client says it’s him.
Mr McGowan: Yes.
(Transcript p.42)
-	Cross-examination of PW6 (DPC4553)
Q:	Yes, I suggest actually - when you were on the anti-pickpocketing squad in 1989 - on one occasion intercepted the defendant and searched him.
A:	I cannot be certain.
Q:	And I think on another occasion you’d intercepted him but not searched him.
A:	I disagree.
Q:	And that on neither occasion did you arrest him.
A:	I do not agree.
CT:	What do you disagree to?  Do you agree that you stopped him twice but did not arrest him?
A:	Earlier on I had said that in Cheong Lok Street was the first time I saw him; never seen him before.
Q:	But you did accept that you could have arrested him or stopped him 1989?
Mr Forrest: Yes.  That’s not inconsistent, your Honour.
CT:	No.
Mr Forrest: He can’t remember ...
CT:	He can’t remember.
Mr Forrest: I can’t remember every client that I have represented.
Mr McGowan: Yes.  Well, the point I was trying to make again, before we all joined in in it, is that he gave an answer that he could have done it; he couldn’t remember whether he had or not ...
CT:	Right, you don’t remember ...
Mr McGowan: And then he gave two denials, which seemed to be inconsistent.
CT:	Well, he’s explained that.  As far as he is concerned, it’s the first time he saw him in Cheong Lok Street on 17 March 2005.
(Transcript pp. 66-67).
Q:	So what did he do?
A:	At the time my colleague 49895 declare his intention to search him.  Well, he then put his hands on his waistband and move about.
Q:	Before the start of the search?
A:	You can put it that way.
Q:	Well, I’m asking you, officer.  You were there.  The rest of us unfortunately weren’t.
A:	At that time 49895 told him that he was suspected of having pickpocketed and wanted to search him.  And it was at that time that the defendant then had his hand on his waistband and move about.
CT:	It’s not “move about”.  I think the gesture that he made was move his waistband up and down.
A:	Yes.
(Transcript p.71)

28.  There are other examples of the judge’s interventions which the Applicant has referred to in his submissions which to save on time and resources, I shall not reproduce here but which he will no doubt wish to refer to the appellate court at the hearing of the appeal.

29.  In the circumstances I considered that leave should be given to the Applicant to proceed with his appeal.