HKSAR v. KHAN, ZUBAIR

HCMA 56/2025

[2026] HKCFI 5132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 56 OF 2025

(ON APPEAL FROM WKCC 1453/2024)

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J U D G M E N T

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1.  The The appellant was convicted after trial of one count of theft[1]. He was sentenced to 12 months’ imprisonment.

2.  He now appeals against conviction and sentence.

Prosecution case

3.  The prosecution called two witnesses to give evidence in court and relied on the witness statement of three witnesses regarding the chain of the CCTV footages.  Mr. Wong (PW1) was the complainant and a taxi driver.  In the early hours of 27 March 2024, he parked his taxi at the offence location, left briefly with a friend to buy food, and returned about 15 minutes later to discover that he had not locked the taxi door and that his black recycle bag containing cash of about $20,000 and a mobile phone (valued at about $13,000) had been stolen.

4.  Police Constable 16835 (PW2) was the investigating officer.  He obtained and reviewed CCTV footage from the vicinity.  According to PW2, the footage showed a male approaching the taxi, opening the door, removing a dark-coloured object, walking away, and later returning to the taxi and taking away a black bag identified by PW1 as his property.  PW2 also checked the time stamps on the CCTV footage against actual time and explained the differences between the various cameras.

5.  PW2 later saw the appellant on Canton Road on 28 March 2024 and considered that he resembled the male shown in the CCTV footage.  He arrested the appellant and seized the appellant’s clothing, namely black capri pants, black shoes, and a brown cross-body bag.  The police also took photographs of the appellant the following day.

Defence case

6.  The appellant elected not to testify and did not call defence witnesses. 

7.  In closing submissions, the defence criticized that the CCTV footage was of insufficient quality to permit a safe comparison, the discrepancies in the time stamps of the CCTV footage made it impossible for the same person to be at different locations at the relevant time, and that it was implausible that PW1 would have been carrying such a large amount of cash in the taxi at that time.

Magistrate’s findings

8.  The magistrate correctly pointed out the issue in this case is the identity of the culprit.  Having reminded himself on the legal principles regarding identification evidence, and having the opportunity to view the CCTV footage, the magistrate rejected the defence argument that the video quality was too poor for comparison and found that the CCTV footage was of sufficient quality to allow reliable visual comparison[2] .

9.  The magistrate accepted PW2’s evidence on the time differences between the CCTV systems and actual time and concluded that the discrepancies were not such as to undermine the prosecution case. He also rejected the criticism of PW1’s evidence about carrying a large amount of cash, holding that this was not unreasonable in the circumstances, particularly given PW1’s occupation and the timing near the end of the month[3].

10.  The magistrate found the evidence of PW1 and PW2 was simple, clear and straightforward.  He accepted them as credible and reliable witnesses[4].

11.  After considering the proximity in time and location of the different CCTV camera captures, the distinctive clothing, the hairstyle, facial hair, body build, walking posture, non-Chinese ethnicity and the recurring presence of a cigarette, the magistrate found that the male shown in the various CCTV footage was the same person[5]. The magistrate then compared the appellant with the male in the footage and found that they looked extremely alike, that the appellant’s ethnicity matched the person shown, that the hairstyle and facial hair were consistent, and that the shoes, capri pants and brown cross-body bag seized from the appellant were identical to the items shown in the footage.  He therefore found beyond reasonable doubt that the male in the CCTV footage was the appellant[6].

12.  Based on the above findings, the magistrate concluded that the appellant had dishonestly taken PW1’s properties with the intention to permanently deprive PW1 of them and therefore convicted the appellant of theft[7].

Mitigation

13.  The appellant was aged over 40, married with a daughter.  While the appellant has previous conviction records, none relates to dishonesty.  It was submitted that the theft was not well planned but opportunistic.  The appellant had been in remand for around 6 months. 

Reasons for sentence

14.  The magistrate considered the nature and seriousness of the offence, the high value of the stolen properties, the fact that the properties were not recovered, the inconvenience caused to PW1 by the loss of the phone and 香港特別行政區 訴 丁玉海 (Dinh Cong Hoai) HCMA 127/2023.  He adopted a starting point of 12 months’ imprisonment and, given the appellant was convicted after trial and there being no mitigating factor, sentenced the appellant to 12 months’ imprisonment[8].

Grounds of appeal

15.  In the notice of appeal against conviction and sentence, the appellant relied on the general grounds therein.  At the appeal hearing, the appellant emphasized that he had no previous conviction for theft and nothing was found on him when he was arrested. 

Consideration

16.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power.  The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict.  It was recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand.  Hence, it must exercise caution when considering findings of facts based on oral testimony.  Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.  On an appeal against sentence, the intermediate appellate court should consider all the facts, mitigation and relevant authorities.

17.  In this case, the main issue is identity of the culprit.  The magistrate was correct in accepting both PW1 and PW2’s evidence and rejecting defence criticisms on their credibility and the discrepancies on time stamps of the CCTV footage. 

18.  I have the opportunity to view the CCTV footage repeatedly.  I agree with the magistrate that the footage was of sufficient quality such that it clearly showed the appearance, clothing and movements of the culprit and the magistrate could view and use the footage for comparison.

19.  Having viewed the CCTV footage, I come to the same conclusion as the magistrate, that is the culprit captured in the CCTV footage was the same person and having compared with the appearance of the appellant at the time of arrest and his clothing and belonging, the culprit shown on the CCTV footage was the appellant.  He was the person who stole the properties from PW1’s taxi at the material time.  Therefore, there is sufficient evidence to prove the charge against the appellant. 

20.  Regarding the sentence, the magistrate was correct in considering the fact that the appellant had no previous conviction relating to dishonesty, that the offence was serious due to the substantial value of the stolen properties, the inconvenience caused to PW1 as a result of loss of the mobile phone, and the appellant’s conduct in returning to the taxi after the first intrusion.  In light of the above circumstances and the case of 丁玉海 (Dinh Cong Hoai), I consider the sentence imposed by the magistrate was not manifestly excessive or wrong in principle.

21.  In view of the above, the appellant’s appeal against conviction and sentence is dismissed.