HKSAR v. RANG ZHI TAI AND ANOTHER

HCMA 7/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 7 OF 1999

(On appeal from WSCC 13685 of 1998)

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J U D G M E N T

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Appeal against Conviction (2nd Appellant only)

1. The 2nd Appellant was convicted after trial of an offence of Theft at Western Magistracy on 3 December 1998. At that trial he had been the 2nd Defendant and had been jointly tried with the 1st Appellant.

2. The facts of the case were that the Appellant together with 3 other men had stolen the handbag of a female Japanese tourist from a table inside Delifrance in Queensway Plaza in Central.

3. One of the men was seen by a nearby customer to take the handbag from a chair next to the victim's table where it had been left by her.

4. That customer informed the victim of the theft of the handbag as the 4 men were leaving the premises.

5. The victim (PW2) and her female friend (PW3) then followed the 4 men down to the public transport facilities underneath the Plaza. I should say that they said they saw only 3 men which is consistent with the evidence of the customer(PW1), who said that one of the men had left the restaurant in advance of the others. Underneath the Plaza in the public transport facilities area, each of PW2 and PW3 tried to grab hold of the men they had followed. PW3 tried to grab hold of the Appellant but he got away from her after a brief struggle and boarded a bus at random. That bus then drove off.

6. Another bus driver saw the struggle between PW3 and the Appellant and subsequently at a set of traffic lights pulled alongside the first bus and told its driver that the last man to board that bus had "robbed" someone. The driver of that bus then pulled over in Queen's Road East and informed the passengers of the bus as to what had happened.

7. The Appellant then tried to get off the bus but the driver prevented him from doing so until the Appellant pressed the emergency exit button and left the bus.

8. The driver pursued him, caught him, and brought him back to the bus. Later, police arrived with PW3 who identified the Appellant as the man who she had unsuccessfully tried to apprehend underneath Queensway Plaza and who she had followed out of Delifrance.

9. The Appellant gave evidence at trial. He said he was an innocent passer by who had gotten lost in Queensway Plaza while on the way to visit a friend in Aberdeen.

10. He said he had walked past Delifrance and near a staircase he had seen 2 Japanese ladies, one of them PW3, chasing 2 men. He said he went down the staircase and there PW3 had attempted to grab him. He said to avoid trouble he had boarded the 1st available bus. When it had stopped in Queen's Road East he had left it, again in an attempt to avoid trouble.

11. The magistrate rejected the Appellant's evidence as being of no weight.

12. The fundamental issue was said to be one of identification. The learned magistrate said in his Statement of Findings :-

"It was not in issue that ......D2 was the person who had been approached by and had a struggle with PW3. The issue was whether I could be sure beyond a reasonable doubt that ......D2 (was) part of the group of 4 men who had taken PW2's handbag."

13. That was a succinct statement of the issue.

14. The magistrate then said this in his Statement of Findings :-

"PW3's evidence was that she saw the group of 3 men (the 4th had already left) pointed to by PW1 leaving the café. She later grabbed hold of D2 and could clearly remember his face because she had a struggle with him. The subsequent identification of D2 was by way of confrontation and its reliability would therefore have been suspect had it not been supported by the evidence of ....the two bus drivers."

15. But the issue of identification regarding the Appellant, the 2nd Defendant at trial, was not whether he was the person who had struggled with PW3 before fleeing on a bus and eventually been apprehended. This was common ground and was not in dispute.

16. What was said to be in issue was whether PW3 had correctly identified the Appellant as being one of the 3 men she said she saw leaving Delifrance in the group which had stolen her friend's bag at the point of time that she tried to apprehend him.

17. PW3's identification of the Appellant when confronted with him after his apprehension was simply as the person she had struggled with. She said during the struggle she had seen his face clearly. She did not purport to recognise him, from his facial appearance or in any other way, as being one of the men earlier seen by her in the restaurant.

18. This latter aspect of identification was however separately established by PW3's evidence as to her following the same person she had tried to apprehend from the restaurant down to the point where she had intercepted him.

19. The magistrate had accepted that PW3 was a witness of reliability and truth. She had said in her evidence that she had never lost sight of the person she had been chasing up to the point of time when she grabbed him, but that she had only lost sight of him when he had then run off towards the bus terminal.

20. The point is that PW3 was able to say that, together with PW2, she had followed the 3 men who left Delifrance, and had eventually tried to stop one of them at the downstairs bus terminal. She said, and the magistrate obviously accepted this evidence, that she had not lost sight of him up to that point in time.

21. Relying also, as he said, on the evidence of the 2 bus drivers PW5 and PW6, one of whom had seen this struggle and had then seen the man board the bus that was eventually stopped, the magistrate was perfectly entitled to conclude, as he did, that the Appellant was the person who PW3 had struggled with briefly and to conclude from the evidence that he had been one of the men she had followed from Delifrance.

22. In other words having accepted PW3, PW5 and PW6 as reliable witnesses a chain of evidence was established which traced the Appellant's path from Delifrance, where he had been with the other men, to the point of his apprehension in the bus. This was evidence firmly establishing the Appellant as one of the 4 men at Delifrance.

23. The only other issue which could conceivably have arisen on the evidence was whether the Appellant, even if one of the 4 men who had come into Delifrance, was personally involved in the theft. Two of the 4 men, neither of them being the Appellant, had stolen and handled the victim's bag.

24. The Appellant and another man had come with these 2 into the restaurant, had sat down and ordered nothing, from the evidence of PW1, and had been present when the bag was stolen by one of them and passed to another and had then left in an orchestrated manner, walked away together and eventually fled in different directions. The magistrate was entitled to find, as he obviously did, that the Appellant was part of a joint enterprise to steal.

25. In my view, the conviction was properly founded on the evidence in the case and was in no way unsafe.

26. The 2nd Appellant's appeal against conviction is dismissed.

Appeals against Sentence (Both Appellants)

27. Both Appellants appeal against their sentence of 2 years imprisonment imposed upon them by the learned magistrate on the grounds that it was too severe.

28. The learned magistrate in his reasons for sentence suggests he found as an aggravating factor that the Appellants were organised and professional thieves. In my view that finding was correct.

29. Nevertheless from the authority of The Queen v Vy Kien and Pham Van Hoa [1991] 1 HKLR 422, kindly provided to me by Mr. Lam, an appropriate starting point of sentence prior to any aggravating factor being taken into account would have been, in the circumstances of this case, 15 months imprisonment bearing in mind the nature and value of the property stolen. I am told the value of that property was something over $3,000.

30. In my view that starting point would have been appropriately increased to 18 months imprisonment taking into account the professional nature of the offence.

31. The sentence as it stands is too severe. In respect of each Appellant the present sentence is set aside and a sentence of 18 months imprisonment is substituted and the Appellants' appeals on sentence are allowed to that extent.