HKSAR v. SUEN PING

CACC291/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.291 OF 2007

(ON APPEAL FROM DCCC 437 OF 2007)

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REASONS  FOR  JUDGMENT

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Burrell J (giving the reasons of the Court) :

1. On 22 August 2007, after a trial before Her Honour Judge Chua, the applicant was convicted of one charge of theft and sentenced to 18 months’ imprisonment.

2. At the conclusion of the hearing for leave to appeal against conviction only, we dismissed the application.  We now give our reasons for the dismissal.

3. The theft alleged was a case of pickpocketing committed on 20 January 2007 at the Jockey Club Betting Centre (“the Centre”) in Shanghai Street, Yaumatei.

4. From about 2:15 p.m. two police officers (PW2 and PW3), in plain clothes, were on duty keeping observation.  The Centre was very crowded.  Live racing was being shown on the TV screens.

5. Soon afterwards the conduct of the applicant caused the police officers to become suspicious.  He was not placing bets and was not watching the TV screens.  They therefore kept him under close watch.

6. Shortly after 3 p.m. PW2 saw the applicant standing alongside another man (the victim, PW1) and saw him take a mobile phone from the breast pocket of the jacket being worn by PW1.

7. At that moment, unaware that his phone had been stolen, PW1 decided to leave the Centre.  PW2 decided to follow him.  He stopped him just outside the Centre and asked him if his phone was missing.  PW1 then realized that it was.

8. PW2 then shouted to his colleague who was still inside the Centre to detain the applicant, which he did.  The applicant had a mobile phone in his left hand which PW1 was later able to confirm was his by reference to personal information kept in the phone’s memory.

9. The applicant was arrested and cautioned.  After caution he said that he had seen the phone on the floor and had picked it up.  When arrested the back of the phone had been taken off and the battery removed.  The applicant said that it was in this condition when he picked it up from the floor and that he was going to hand it over to one of the staff but was arrested before he could do so.

10. There are four grounds of appeal.

Ground 1

11. It was submitted that because PW2 chose to pursue the victim out of the Centre rather than immediately detaining the applicant, a doubt must exist about the reliability of PW2’s evidence concerning what he saw the applicant doing.  It was argued that because the Centre was very crowded and because PW2 and PW3 could not communicate with each other, PW2 would have detained the applicant straightaway if he had seen him steal the phone.

12. We consider this ground to be without merit.

13. In evidence, PW2 explained why he had chosen to pursue the victim before arresting the applicant, namely that he did not want the owner of the stolen phone to disappear, possibly without trace.  The explanation was a credible one and accepted by the judge.  Even if it might have been better had PW2 detained the applicant first it is plain that the judge did not consider it to be a matter which affected PW2’s reliability as a witness.

Ground 2

14. The second ground concerned a complaint that the judge interrupted and cut short defence counsel’s cross-examination on the very issue referred to in Ground 1.  In his written skeleton argument Mr Earnest Koo, counsel at trial and on appeal, describes the interruption as “totally frustrating” his cross-examination.

15. A perusal of the transcript shows this complaint to be overstated and without merit.  The judge allowed a number of questions to PW2 on the issue, all of which he answered in a straightforward manner.  The judge’s interruption came when the questions became, to use her own word, “speculative”, whereupon she rightly suggested that by that stage it had become a matter for submissions at the end of the evidence.  She did not disallow further questioning.  Counsel moved on to another issue.

Ground 3

16. By this ground, it was suggested that the judge had failed to consider a discrepancy in the evidence.

17. The discrepancy was that the victim said that the police officer asked him when he stopped him “have you lost anything?” whereas the police officer said that he asked the victim “is the phone missing from your pocket?”

18. In our judgment, it is not surprising that the judge chose not to deal with it.  The difference in the words used is slight and there is no difference in meaning.

19. It is groundless to suggest that the judge should have regarded PW2’s evidence as less reliable or possibly dishonest as a result of such a discrepancy.

Ground 4

20. A CCTV tape recording of the Centre was shown as part of the evidence.  The judge said she had viewed it several times.  This court also has viewed it several times.

21. It is apparent from the tape that the Centre was very crowded at the time.  A man is seen bending down, a moment later a man is arrested by a plain clothes police officer.  The judge accepted, for the purpose of the argument (as do we), that the man who bent down and the man arrested was the same man, namely the applicant.  He gave evidence that he was picking up the phone from the floor at that moment.

22. The judge dealt with this issue in her Reasons for Verdict as follows :

“After seeing the witnesses testify and having viewed the CCTV tape several times, I have not the slightest doubt PW2 and PW3 have told the truth.  If indeed the figure bending down was the defendant then, for whatever reasons he did so, I am satisfied that it was not to retrieve PW1’s phone.”

23. It is clear that the judge has properly evaluated the evidence.  The question to be addressed is, does the fact that the applicant is seen to bend down adversely affect the reliability of PW2’s testimony?  The judge saw the witnesses, the judge heard the evidence, the judge concluded that the answer was no.  Had she attached any credence to the applicant’s explanation for bending down she would have acquitted him.

24. This ground must also fail.