R. v. AU HO CHEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 435 OF 1995

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J U D G M E N T

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1. This is an appeal by the appellant against conviction. He was found guilty of theft of a portable mobile phone with battery valued at $4,500. He was bound over for good behaviour in the sum of $1,000 and ordered to pay cost of $500.

2. The Crown's case, which the learned magistrate apparently accepted, was this. At about 6:00 am on 1st November 1994, two police officers were patrolling in the vicinity of Nanking Street in Kowloon. They were in uniform. They heard some noises and went to have a look at what had happened. They saw a few persons making some noises. When they went forward, they saw the appellant taking out a portable phone from his right front trousers' pocket and threw it onto the ground. One of the officers went up to him and made enquiries of him as to why he had thrown the portable phone onto the ground. According to the officer, at first the appellant did not give any reply, but upon further enquiry, the appellant said he had picked up the phone, that he knew it was wrong so that when he saw the officers he at once threw the phone onto the ground. Upon search, the officer also found the appellant to have a new portable phone on him. There was in fact a receipt for that phone.

3. The appellant gave evidence and said that while he was walking in the street, he was a little drunk. He slipped and fell onto the ground only to find that there was a portable phone near him. Thinking that it was his, he picked it up and put it into his own pocket. He said he continued to walk until the police came and he thought that the police was trying to ask for his I.D. Card so he reached for his wallet. He found that he had this portable phone which did not belong to him, and so in a panic, he threw it away. Under cross-examination, he admitted that he did tell the police that he picked up the phone and he knew he was wrong.

4. It is not disputed that before the appellant threw away the mobile phone, he was in possession of it and it did not belong to him. He said he picked it up but he thought it was his as he had just bought a new phone. The only issue in this case was what was in his mind before he threw it away and when he was in possession of the phone. This can be broken up into two matters and that is : whether there was any dishonesty on his part and whether he had any intention to permanently deprive the owner of the mobile phone.

5. The learned magistrate in his brief reasons for verdict given immediately at the end of the case, and subsequently in the Statement of Findings said that he rejected the appellant's evidence as to how he came into possession of the phone and further, as to what happened when the police approached him and stopped him. He said he was satisfied that the only inference that he could draw was that the appellant had dishonestly appropriated the mobile phone with the intention of permanently depriving the owner of it. It was admitted on behalf of the appellant in this appeal that he was wrong and that that was not the only irresistible inference that could be drawn in the circumstances.

6. I must say at the outset that picking up a telephone in the street, in fact, anything in the street, does not in itself amount to theft. It depends very much on the state of mind of the person who picks it up. How this state of mind is to be assessed, of course, depends on all the circumstances of the case. It can be that he is trying to look for the real owner; it can be that he is trying to bring the article to the Police Station; it can be that he is trying to dispose of it. These, of course, are innocent explanations as to why a person is found to have possession of something which does not belong to him.

7. Had the matter ended there - that he was found to be in possession of somebody else's mobile phone, I would have thought that the learned magistrate was not entitled to say that the only inference was that the appellant had dishonestly appropriated the mobile phone with intention to permanently depriving the owner of it. However, there is more evidence in this case. The magistrate had rejected the appellant's evidence as to how he slipped and fell and picked up the phone believing that it was his. It is important to note that the appellant had a mobile phone of his own in his jean's pocket at that time. It would be easy, in my view, to find out that the one he picked up was not his. I think the learned magistrate was right to reject this part of his evidence. There was also the utterance by the appellant that he knew that this was wrong. In fact, under cross-examination, he admitted that he said that to the police. It was submitted on his behalf that it could mean something else and was perfectly consistent with his state of mind which was innocent.

8. What then, if I may ask, would be another possible explanation ? In my view, when he said "I knew this was wrong", it could mean only one or the other of two things. It may mean that he was wrong to pick up another's phone mistaken it to be his own. In other words, "I am sorry, I thought this was mine and that's why I picked it up." The other alternative is that he was in possession of the phone belonging to another person with intention of keeping it and treating it as his own. It is only in the second situation that one can draw the conclusion that he has the requisite state of mind, that is, dishonesty and the intention to permanently depriving the owner of it.

9. I ask myself whether the conclusion here is consistent with the first situation, that is, whether it was some sort of an apology that he had mistakenly taken something else as his own. In the circumstances of this case, the learned magistrate has rightly rejected that and there is ample evidence to justify that. It does not seem open to the appellant to say : "Well, I was thinking of disposing of it, I was thinking of bringing it to the Police Station, or I was thinking of looking for the real owner." The mere conduct of his throwing away the mobile phone upon seeing the officer approaching him and with this utterance, which amounted to an admission of his state of mind is, in my view, sufficient evidence for the magistrate to draw the inference which he did.

10. In the circumstances, with respect to the submission of learned Counsel for the appellant, I agree with the learned magistrate that the inference of guilt was the only reasonable inference. For the reasons which I have given, I would dismiss the appeal.