THE QUEEN v. CHIU MO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 340 of 1984

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JUDGMENT

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1. The prosecution evidence in the Court below was entirely that of Mr. Yeung Hong who said that on the train going to Fanling, the accused undid  the zipper of his trouser pocket and took his wallet. Perhaps a little strangely he did not, according to his evidence, do anything about that at the time he kept the accused under surveillance. He said he did so until they got to Taipo when the appellant got off the train alone. There then was something like musical chairs in that when Mr. Yeung followed the appellant off, the appellant then got back on the train. The appellant then got off the train again, for the second time, followed again by Mr. Yeung. Finally as the train was about to pull away he tried to get back on yet again. If that was so, it seems to me to be cogent evidence that the appellant was being evasive and that he had something to hide, although there is no doubt that when he was finally searched the wallet was not found on him. The appellant in his evidence said in fact that did not happen at all; that he was first approached at the University Station; that he finally got off at Taipo, he only got off once and that was because he had no choice but to go and see the police. What did give me some cause for concern is the fact that although Mr. Yeung said that his father and brother were in the vicinity, neither of them was called to give evidence. No reason was given. Nevertheless the magistrate has heard the evidence given by the prosecution witness, Mr. Yeung, and he has accented it. He has heard the evidence given by the accused and he did not believe him. That is a pure finding of fact. The appellant complains that he has been convicted because he has a previous conviction for the same offence. It is quite clear from the record and the appellant does not suggest to the contrary, that the magistrate was only informed about that after he had reached his verdict. I am quite satisfied the magistrate was not aware of the previous conviction. I am satisfied the magistrate was entitled to come to the finding of fact that he did and the appeal against conviction must be dismissed.

2. There is also an appeal against sentence. The magistrate said he started with a sentence of 9 months imprisonment. The magistrate has apparently increased that to one year because the appellant had a previous conviction. That is  the wrong approach. What he should have done was to assess a sentence and then, if there was a clear record, he could have reduced it. It is however wrong to increase a sentence because of a previous conviction. A clear record is a factor which the appellant can put forward in mitigation, and here he could not. What he could have done, quite properly however, was to have taken into account the fact that the appellant was not acting alone. This seems to be a planned pickpocketing involving at least two people because the appellant must have passed the wallet onto somebody else, and that, in my view, is an aggravating factor which justifies imposing a higher penalty. However, the magistrate has not come to that finding of fact himself and I don't think I should. For that reason, and that reason only, the appeal against sentence is allowed and the sentence was reduced to one of 9 months.