R. v. CHEUK CHUN WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1474 OF 1996

_______________

_______________

_______________

J U D G M E N T

_______________

1. The appellant was convicted on 13th November 1996 of one count of theft. The circumstances was somewhat unusual.

2. On 7th September 1996, the appellant was in Kowloon Park and at about 11 p.m., he found a wallet. He found it on a bench near the bird park. He picked it up and he said he waited at the bench for about 45 minutes to see if the owner of the wallet would come back. The owner did not. He saw a security guard. He approached him and said : "I have found a wallet." The security guard spoke, through his radio, to his superior officer and checked the contents of the wallet. When he did so, the appellant saw that there was money, an identity card, an address book and other goods. As it turned out from the facts agreed under s.65C of the Criminal Procedures Ordinance, there was a sum of HK$870, a Hong Kong identity card, an address book and some name cards in the wallet. The identity card number of the appellant was taken by the security guard. The appellant did not see fit to give this wallet to the security guard and said that he formed the view that he would give the wallet to the police at a police station.

3. He continued to wait at the bench to see if the owner returned. When the park closed at about 11.45 p.m., he left and went towards the promenade at Tsimshatsui East to meet a friend. On the way he went to a convenient store and purchased some beer. He went to the promenade to drink the beer. All along as he approached the promenade, the wallet was in his pocket. On the way to the promenade, he threw away the wallet and its contents. His reason for doing so was, he said, because he found it troublesome. He could not recall where he threw it, he could not recall how he threw it, nor any of the circumstances under which he threw it away. He did not go to a police station because he had an appointment with his friend. He knew he had a duty to hand the wallet to the police. He said it did not occur to him when he threw away the wallet that he was acting dishonestly but he was aware that he had a duty to report the finding to the police.

4. The learned magistrate in approaching this matter had distinct reservations concerning the evidence given by the appellant but was prepared to approach the matter on the basis of the evidence which he had given. He says :

"With substantial reservations I gave him the benefit of the doubt as to his account and proceeded to deal with the case on the basis of the account he gave in evidence as to the active discarding of the wallet and contents."

5. The learned magistrate applied the test set out in R. v. Ghosh [1982] 2 All ER 689. That test falls into two parts to determine whether there has been dishonesty. The first question that must be asked is : "Was what was done dishonest according to the ordinary standards of reasonable and honest people? If no, then the defendant is not guilty. If yes, the tribunal must go on to ask : Did the defendant realise that reasonable and honest people regard what he did as dishonest? If yes, he is guilty; if no, he is not."

6. The magistrate found that the facts of the loss of the contents of the wallet and its finding by the appellant were made out. He drew the inference that in discarding the wallet and the contents, the appellant knew the wallet and contents would almost certainly not be recovered by their owner and that he was unconcerned as to that fact. He found as a fact that the wallet and the contents had never been recovered by the police.

7. The only real point in this appeal is whether the learned magistrate was right in finding that where a person comes into possession of an item of value, containing property which would identify the owner of the wallet and contents, and takes it from the place where the owner had lost it or where he found it to somewhere quite different after a period of time and then makes a decision to throw it away in circumstances where he knows that the contents would almost certainly not be discovered by the owner, whether or not it was an act which, according to ordinary standards of reasonable honest people, was dishonest. The magistrate very carefully considered all of the evidence and came to the conclusion it was such an act.

8. I must consider whether or not he has erred in any measure in the manner in which he approached this decision, the law which he cited and the facts upon which he made his finding. I cannot say that he has in any way strayed from the proper path that a magistrate must have taken in coming to a decision of this nature. It was open to him on the facts to come to the conclusion that he did. He applied the test he ought to have applied, he applied it in a manner as he ought. I cannot re-make his decision and find that he was wrong in coming to his conclusion. The appeal against conviction is dismissed.