HKSAR v. NEBOH CHINEDU KINGSLEY

HCMA 758/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 758 OF 2014

(ON APPEAL FROM KCCC 3849 OF 2014)

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J U D G M E N T

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1. The appellant appealed against both his conviction and sentence. The appellant was convicted after trial by a magistrate[1] of one count of theft contrary to s 9 of The Theft Ordinance Cap 210 and was sentenced to 9 months’ imprisonment.

2. The theft was of a notebook computer.  On 4 August 2014, the appellant grabbed a notebook computer from a computer stall in Apliu Street, Sham Shui Po, then ran away with it.  This incident was recorded on CCTV footage.  Police officers arrested him a short distance away from the stall. 

3. The magistrate was well aware that the issue in the trial was whether the appellant was dishonest when he took the computer and had the intention to permanently deprive the owner of it. 

Prosecution case

4. The owner of the computer was Mr Chan.  He was the key prosecution witness.  He sold and repaired computers at his stall.  The stall was located outside the Ground floor of No 211 Apliu Street, Sham Shui Po, Kowloon.  The appellant had purchased a computer (the purchased computer) from him in the past before this incident.  Chan accepted that he had disputes about the functioning of the purchased computer with the appellant after the appellant’s purchase. 

5. The appellant had repeatedly asked Chan to repair the purchased computer for free and had threatened to take away one of Chan’s computer and to beat him up. 

6. On one occasion prior to the incident, the appellant and Chan agreed upon a fee of HK$300 for Chan to repair the purchased computer.  The computer was repaired by Chan and returned to the appellant but the appellant only paid Chan HK$200 for the repair.  Chan then told the appellant to pay the balance when the appellant visited his stall again, or otherwise the appellant should not bother him again. 

7. The appellant visited Chan’s stall again on the day in question at about 1:20 pm.  The appellant requested Chan to repair the purchased computer once more.  The appellant paid Chan HK$100.  Chan regarded this as settlement of the balance of the debt which the appellant owed Chan for the previous repair costing HK$300.  However, because of their past relationship, Chan refused to repair the appellant’s purchased computer and asked him to take it elsewhere. Suddenly, the appellant grabbed a notebook computer which was on display at Chan’s stall and ran away with it.  Chan was sure that at no time did the appellant ask Chan to go to the police station with him. 

8. On the same day at about 1:30 pm the appellant was arrested by the police a short distance away from the stall at the junction of Kwelin Street and Cheung Sha Wan Road. 

The defence case

9. The appellant elected to testify.  He called no defence witnesses.

10. At the trial the appellant was represented by counsel instructed by the Duty Lawyer Service however, just before he finished his evidence-in-chief, he complained about the competence of his counsel.  The appellant’s counsel then applied for leave to discharge himself from representing the appellant which was granted by the magistrate.  Upon enquiry by the magistrate, the appellant was determined to proceed with the trial without legal representation. 

11. The appellant’s cautioned statement had been adduced into evidence by way of admitted facts when he was represented by counsel.  Under caution, the appellant admitted he took away the notebook computer from Chan’s stall. However, the appellant claimed that when he took his purchased computer to Chan’s stall for repair on the day in question, Chan took the HK$100 from the appellant but refused to repair his purchased computer and additionally refused to return the money to him.  Therefore, the appellant said, he took away Chan’s notebook computer out of anger and had done so for the sole purpose of compelling Chan to follow him to the police station. 

12. The appellant’s case was that he had repeatedly asked Chan to resolve their dispute by accompanying him to the police station but Chan refused.  He was not dishonest nor did he have the intention to permanently deprive Chan of the computer.

Magistrate’s findings

13. The magistrate found Chan to be a truthful witness.  He accepted his evidence.  He accepted that the appellant had never asked Chan to go to the police station with him.  The magistrate considered the CCTV footage which showed the appellant was at the stall for a short time in the presence of Chan, then the appellant snatching and immediately running off with Chan’s computer.  

14. As noted by the magistrate the appellant in his evidence gave a number of different versions and gave various explanations for his taking away of Chan’s notebook computer.  The magistrate found his evidence inconsistent, illogical and full of discrepancies.  He rejected his evidence. 

Appellant’s election of language used at the appeal hearings

15. The appellant was not legally represented at his appeal.  He is Nigerian.  An Igbo speaking interpreter was arranged for the hearings.  On the first day of the appeal the appellant said that despite growing up and speaking Igbo in Nigeria, he had forgotten how to speak Igbo.  His preferred language to use at the hearing was English, but “American Scope” English.  The appellant explained “American Scope” was the standard English spoken by Black American’s. Being unaware of such a pidgin English it was nevertheless confirmed that there was no “American scope” interpreter available in Hong Kong.  The appellant maintained his choice to speak English at his appeal and insisted on dispensing with the assistance of the Igbo interpreter. 

16. As the appellant had not filed any written grounds of appeal against conviction or sentence the hearing was adjourned for him to file, upon his agreement, his written grounds of appeal in English.

17. At the resumed adjourned second day of the hearing of appeal, the appellant this time elected to speak Igbo with the assistance of an Igbo/English interpreter.  From time to time during the hearing the appellant however spoke English.

Grounds of appeal against conviction

18. I have endeavored to set out below my understanding of the appellant’s homemade written grounds of appeal.  They were as follows:-

(1) the magistrate erred in finding :-

(a) the appellant was dishonest and

(b) that the appellant had intended to permanently deprive Chan of the note book computer.

(2) the magistrate erred in failing to consider :-

(a) the CCTV recording had no audio feed which would have assisted the appellant’s defence so far as the conversation between the appellant and Chan could be heard.

19. I shall deal with the above grounds together.  At the hearing of the appeal the appellant reiterated his version of events.  In summary he said that the purchased notebook computer from Chan was faulty.  He had taken it to Chan to be repaired once already and paid Chan HK$300 for the repairs.  However shortly thereafter the computer had the same problem.  He therefore took it back to Chan again to repair on the day in question.  The appellant said he paid Chan HK$100 as a deposit for the cost of repairing the computer, however Chan insisted that the HK$100 was a debt from the last repair and used the HK$100 to settle that debt. 

20. Chan refused to repair the appellant’s computer again.  The appellant claimed that Chan should have returned the HK$100 to the appellant so he could go somewhere else to repair the computer.  The appellant had stood beside Chan and begged him for about 15-20 minutes to either repair his computer or return the HK$100 but Chan refused and ignored him. 

21. In his written grounds of appeal[2] the appellant said he was disappointed that Chan refused to give him back his money despite his begging and waiting.  The appellant felt a lot of shame in that it was a “public assault” on him, he was provoked by Chan and felt Chan to be disrespectful.  He therefore made the decision because they were at “war front.”  He grabbed the computer and walked to the police station.  He had intended for Chan to follow him to the station as he had Chan’s computer.  He was not dishonest and never intended to permanently deprive Chan of the computer. 

22. The appellant stated that the CCTV recording with the audio feed would support his version of events that he was there begging Chan to return the HK$100, repair his purchased computer and accompany him to the police station. 

Discussion

23. The appellant’s version was duly considered by the magistrate.  The magistrate had carefully considered the issue of dishonesty and whether the appellant had the intention of permanently depriving Chan of his computer.  The magistrate had received the evidence of Chan and the appellant’s first-hand.  He was entitled to accept Chan’s evidence and reject the appellant’s evidence. 

24. The CCTV footage showed that the appellant grabbed the computer and ran away, he did not walk away, as the appellant alleged.  The magistrate relied upon Chan’s evidence which he said was supported by the CCTV recording.  It was open to the magistrate to find that in grabbing and running away with the computer this was not an act which presented of the version given by the appellant.

25. As to there being no audio feed on the CCTV recording the magistrate in assessing the evidence reminded himself that one could neither see nor guess at the conversation between Chan and the appellant.  The magistrate accepted the evidence of Chan that the appellant never asked him to go to the police station. 

26. The magistrate was entitled to reject the appellant’s evidence that by grabbing and running away with the computer that it was the appellant’s intention for Chan to follow him to the police station. 

Conclusion

27. It was open to the magistrate who had duly assessed the evidence of Chan and the appellant and the CCTV evidence to make his finding on credibility as he did.  I see no grounds to interfere with the magistrate’s fair and reasoned findings. 

28. The facts as found by the magistrate based on the evidence were sufficient to convict the appellant.  The appeal against conviction is accordingly dismissed.

Grounds of appeal against sentence

29. Although the Form 102 notice ground stated that the sentence was too severe, the appellant abandoned that ground at the hearing, however sought for the merciful intervention of the court to reduce the sentence on the ground of his personal circumstances caused by his term of imprisonment.

30. The grounds relied upon were :

(a)  The poor standard of living, sport, medicine, food and hygiene in prison,

(b)  His life in prison was in danger as he was being molested and intimidated by other prisoners,

(c)  There was disease and infection in prison,

(d)  The fellow prisoners were discriminating against him because of his race and colour,

(e)  There was no freedom of expression, choice or right in prison,

(f)  He needed to meet a friend who would come to Hong Kong and if he was in prison he would miss him and

(g)  He needed his freedom.

31. In mitigation before the magistrate, the appellant had nothing to say. The magistrate had called for two psychiatric reports which confirmed that although the appellant had a brief history of psychosis he was mentally stable at the time of sentence and no treatment was recommended. 

32. In passing sentence, the magistrate noted that the appellant had two previous unrelated convictions.  Having found that this was a snatching case, the magistrate referred to the case of HKSAR v Yeung Kam Tung CACC 427/2012 andnoted that a starting point of 12 months’ imprisonment was appropriate for snatching in its simplest form where there was no violence used towards the victim and the offence was an opportunistic one (see §11 Yeung Kam Tung).

33. Having considered the circumstances of the present case, including the reason why the appellant committed the offence and that the offence appeared to be committed on the spur of the moment, the magistrate adopted a starting point of 9 months’ imprisonment.  There being no other mitigating factors, it was the sentence passed on the appellant.

34. It would have been open for the magistrate to take a starting point of 12 months’ imprisonment.  In the present case, the magistrate had taken a lenient view and adopted a lower starting point of 9 months’ imprisonment instead. 

35. The appellant’s grounds to reduce the sentence are his assertions of his dire hardship in prison.  He implores the court to act mercifully towards him. It has been said over the years by the court that if the hardship is caused by the fact that he is a foreigner in a Hong Kong prison, this does not by itself entitle him to any special consideration or reduction in sentence. 

36. The other matters complained of by the appellant are an ordinary incidence of a person facing incarceration under a lawful sentence of imprisonment.  There is no merit in his grounds of appeal against sentence. 

37. As to the other grounds of appeal there is, likewise, no merit in any of them.  They all seek the merciful intervention of the court because of the applicant’s personal circumstances.

38. The appellant’s appeal against sentence is dismissed.