HKSAR v. CHAN LEUNG TAK

HCMA 665/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 655 OF 1999

(On Appeal from NKCC 2213 of 1999)

_______________

________________

________________

J U D G M E N T

________________

1. This Appellant appeals against his conviction for one offence of Theft from a motor vehicle. The main ground of the appeal is that the Magistrate did not take into account sufficiently the alleged material discrepancies in the evidence of the sole identifying witness, who was PW1. This witness, from a distance, allegedly saw the Appellant taking his bag from the front seat of PW1's van and a pursuit took place, with PW1 chasing and eventually apprehending Appellant.

2. Counsel for the Appellant made much play of the fact that there was a discrepancy in the evidence as to whether or not the Appellant was wearing long trousers or shorts at the time of his apprehension and submitted that this suggested that PW1 was unreliable and wrong in identifying Appellant. Having read the transcript and having considered the examination of this matter in the trial court, I turned to the Magistrate's Statement of Findings and found that he gave a meticulous and very careful analysis of the identification evidence. He clearly had in mind the discrepancy as to whether Appellant wore trousers or shorts, but there was clear evidence that PW1 said that he had the offender in his sight from the time he saw him taking the bag and throughout the time of his chase, although there may have been a few seconds when his view and, in particular, his view of the Appellant's hands may have been blocked, which meant that he did not see Appellant abandon the stolen bag. It was clear that the witness was not relying on the Appellant's clothing as a way of identifying him. The Magistrate was fully aware of the need for caution.

3. I am satisfied that the Magistrate had taken all the matters into account and that he gave himself the requisite warnings. There was ample evidence before the Magistrate on which he could come to the conclusion that the identification was reliable. This appeal is dismissed.