HKSAR v. LUK AH NAM

HCMA1106/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1106 OF 2004

(On Appeal From KTCC 7196 of 2004)

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J U D G M E N T

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Introduction

1. The appellant appeals against her convictions, after trial, on three charges of theft, contrary to section 9 of the Theft Ordinance, Cap.210 by Mr Dufton in Kwun Tong Magistracy on 12 November 2004.  Charges 1 and 2 alleged that the appellant, jointly with Qi Jinying, her co-defendant at trial and prior to her appeal being dismissed upon her abandoning her appeal formerly the 1^st appellant in these proceedings, stole two Nokia mobile telephones on 15 September 2004, somewhere in Mongkok in Kowloon, from Mdm Lam Lai Lai and Mdm Cheng Po Kiu respectively.  Charge 3 alleged that they had jointly stolen a third mobile telephone, a Motorola, at an unknown time and date in Hong Kong from an unknown person.  The magistrate sentenced the appellant and Qi Jinying to 12 months’ imprisonment in respect of each of the charges and ordered that each sentence be served concurrently one with the others.

The prosecution case

2. The prosecution called as witnesses the owners of the two telephones, the subject of Charges 1 and 2, namely, Mdm Lam Lai Lai and Mdm Cheng Po Kiu.  The former testified that she had last used her mobile telephone in the Argyle Centre, Mongkok, at 6;00 p.m. on 15 September 2004.  She kept the mobile telephone in her trouser pocket and became aware of its loss at 6:30 p.m. whilst she was shopping in Mongkok.  The latter testified that she had last seen her mobile telephone when she was in a dental clinic in Tung Hoi Mansion, Mongkok some time past 5:00 p.m.  She kept her mobile telephone in the outer pocket of her handbag and became aware that it was missing about 7:00 p.m. whilst she was in Fa Yuen Street.  Neither lady was aware of how their respective telephones had been lost.

3. Police Constable 51424 (PW4) testified that at 7:50 p.m. on that day he had observed the appellant and Qi Jinying in Fa Yuen Street.  He noticed that they were paying attention to the handbags of fellow ladies.  He saw them approach and move close to the backs of customers choosing fruit at stalls.  He saw Qi Jinying approach the back of one lady and take out a silver-coloured object from her own handbag, which she placed between her fingers.  She returned it to her handbag about three minutes later, not having made any attempt to pickpocket.  PW4 followed the two appellants into Fife Street where, at around 8:00 p.m., he saw them approach a hawker at a hawker stall.  That turned out to be Mr Shum Yuen Chau (PW3).  He was a hawker of secondhand mobile telephones and testified that he being there trying to transact business for about four hours.  He testified that he knew neither the appellant nor Qi Jinying prior to meeting them there at that time and place.  PW3 and PW4 each testified that Qi Jinying took out three mobile telephones from her handbag, handed them to the appellant who immediately gave them to PW3.  Both of them remained adamant that no money passed between PW3 and Qi Jinying or the appellant.  Each of the witnesses was adamant that three mobile telephones were handed over.  PW4 testified that he went up to the three of them and interrupted the apparent transaction that was taking place.  PW3 testified that at that point in time he was testing the mobile telephones.

4. PW4 testified that having intercepted Qi Jinying and the appellant he searched the handbag of Qi Jinying and found a silver blade or cutter.  The blade was about 1½” in length and has one shape edge and one edge covered.  He agreed that Qi Jinying had told him that she had bought the telephones in Shamshuipo that afternoon and that she used the blade for shaving her eyebrows.

The defence case

5. Qi Jinying testified at the trial.  She said that she was a resident of the Mainland and had come to Hong Kong on 15 September 2004 as a visitor to buy items for a baby, she being pregnant.  She passed through the border crossing at Lo Wu at around 4:00 p.m. and went to Shamshuipo.  There, she purchased two mobile telephones in Ap Liu Street for $1,200 at approximately 5:30 p.m.  She testified that she had been given a receipt for the purchase of the two mobile telephones, but that it had been lost at the time of her apprehension when the police simply emptied the contents of her handbag.  Having telephoned her husband in the Mainland and having discussed with him the wisdom or otherwise of the purchase of the two telephones, she decided to re-sell them.  Accordingly, she telephoned the appellant, her friend, to seek her help in selling the telephones.  She went to the home of the appellant, by which time it was already 6:00 p.m., from where a telephone call was made to PW3 and a meeting arranged in respect of the proposed sale of the two telephones.  That arrangement was kept and after the two telephones were passed over to PW3, he handed her $1,500 and received $300 in change.

6. The parties accepted the obvious mistransposition of the names of the parties in the Statement of Findings of the magistrate in respect of that transaction.

7. The appellant did not testify nor call evidence at her trial.

Reasons for verdict

8. The magistrate stated that he found the prosecution witnesses to be honest and reliable, save that he found that he could not rely on the evidence of PW3 that was unsupported by other evidence.  He stated that he had regard to the fact that PW3 accepted in cross-examination that together with the appellant he had visited Qi Jinying whilst she was detained pending trial at Tai Lam Centre.  The witness said that he had done so at the request of his friend in the Mainland, who turned out to be the husband of Qi Jinying.  The magistrate stated that he accepted that the witness PW3 did not know Qi Jinying or the appellant prior to the 15 September 2004 meeting and his explanation for visiting Qi Jinying with the appellant.  He went on to say that, importantly, he accepted the evidence of PW3 that three, not two, mobile telephones had been handed over to him by the appellant and that no money had changed hands between the parties, noting that this evidence was supported by the evidence of the police officer, PW4.  He concluded by saying that such discrepancies as there were between those two witnesses, PW3 and PW4, of those events were not material and did not cause him to doubt the evidence that the appellant and Qi Jinying were selling the three mobile telephones to PW3.

9. The magistrate rejected the testimony of Qi Jinying and the exculpatory statement that she had made to the police officer after her arrest.  Similarly, he attached no weight to the exculpatory statement made by the appellant to the police office that she had been asked by Qi Jinying to sell the mobile telephones.  In the result, he concluded that on a consideration of all the evidence :

“…. in particular the observations of the appellants prior to their apprehension and their possession of the mobile phones exhibits P1 and P2 shortly after their loss I found I was satisfied so I was sure that the only inference to draw was that the appellants were acting in concert and stole the three mobile phones ….”

Of the fact that there was no direct evidence of the theft of the mobile telephone, the subject of Charge 3, the magistrate stated that, given that the phone was valuable, he determined that it had not been abandoned and that :

“…. The only inference to draw on all the evidence was that the appellants acting in concert stole this mobile phone.”

Amended perfected grounds of appeal against conviction

Ground 1

10. By Ground 1 it is submitted that the magistrate was in error to determine from a consideration of all of the evidence that the only inference to draw was the appellant and Qi Jinying were acting in concert and stole the three mobile telephones.

Ground 2

11. By Ground 2 it is submitted that the magistrate erred in law, having stated that :

“      I was satisfied I could safely rely on the evidence of PW3 where that was supported by other evidence. ….”

and :

“…. I could not rely on PW3’s evidence where that was unsupported by any other evidence.”

by then going on to make findings of fact on parts of the testimony of PW3 that were not supported by other evidence.

THE SUBMISSIONS OF THE APPELLANT

12. In support of Ground 1 Mr Allen for the appellant invites the court to note that :

(1) there was no direct evidence that the appellant and Qi Jinying had stolen the mobile telephones and that PW4 did not testify of having seen PW1 or PW2, that is, the losers of the mobile telephones in Charges 1 and 2 during his observation of the appellants;

(2) there was no evidence of any use whatsoever of the blade seen by the police officer, PW4, in the hand of Qi Jinying.  There was no evidence that the appellant had seen that blade in her hand nor is there any evidence of cutting damage either to the trousers or handbag respectively of PW1 and PW2; and

(3) the only evidence in respect of the appellant was that she had handed over three mobile telephones, handed to her by Qi Jinying, to PW3.

Mr Allen submits that in those circumstances the magistrate erred in drawing the inference that the appellant had acted in concert with Qi Jinying to steal the mobile telephones, the subject of the three charges.

13. In support of Ground 2, it is submitted that having determined that he could rely upon the testimony of PW3 only where the evidence was supported by other evidence, the magistrate erred in law in relying upon parts of PW3’s evidence that was not so supported. 

14. In support of those submissions the court’s attention has been drawn to the magistrate’s findings in respect of the evidence of PW3 in respect of his visit to Qi Jinying at the Tai Lam Correctional Services Department, at which place she was detained pending trial.  In particular, reliance is placed upon the magistrate’s determination that he accepted the evidence of PW3 that he did not know Qi Jinying or the appellant prior to meeting them on the date of the offences.  That evidence, it is submitted, is unsupported by other evidence.  Also, the magistrate accepted the explanations of PW3 for his visit to Qi Jinying in Tai Lam.

15. Furthermore, in his submissions, Mr Allen submitted that in accepting the evidence of PW3 the magistrate did not explain how he resolved the inconsistency in the evidence of PW3 and PW4 in respect of whether or not the former was in the act of testing the mobile telephones at the time of the intervention into proceedings by PW4. 

16. Finally, it is contended that there was no evidence that the mobile telephone, the subject of Charge 3, was stolen property, no owner having been called to testify to that effect.

THE SUBMISSIONS OF THE RESPONDENT

17. It is submitted by Mr Leung, on behalf of the respondent, in respect of Ground 1, that there was considerable evidence upon which the magistrate was entitled to rely in determining to draw the irresistible inference that the appellant and Qi Jinying acted in concert in stealing the three mobile telephones, the subject of the three charges.  He points to :

(1) the evidence of PW4 of the behaviour of the appellant and Qi Jinying shortly before their apprehension in paying close attention to and scrutiny of handbags belonging to other ladies and approaching them closely from behind;

(2) the possession by Qi Jinying of the silver blade;

(3) the proximity in time and place at which the mobile telephones, the subject of Charges 1 and 2, were stolen and the time and place at which the appellants were first seen by PW4 and the place at which they tried to sell the mobile telephones; and

(4) the degree of cooperation between the appellant and Qi Jinying passed the three mobile telephones to the appellant prior to the later passing them to PW3.

18. He adds that in light of the magistrate’s entirely understandable rejection of the testimony of Qi Jinying there was no evidence of the circumstances which led to the appellant being in the company of Qi Jinying, in particular, in the period of the observation by PW4, that is, the 10 minutes before the appellant received the three mobile telephones from Qi Jinying and handed them to PW3.

19. Of Ground 2, in his written submissions Mr Leung submitted that in order to succeed the appellant has to establish that no reasonable finder of fact could rely upon PW3.  Further that in relying upon the evidence of PW3 where it was unsupported by other evidence, i.e. in respect of his knowledge of Qi Jinying and the appellant and the reason for PW3’s visit to the former at the Tai Lam Correctional Centre, if the magistrate was in error so to do, it was not in an area material to the matters in issue and was of no consequence.

CONCLUSION

20. As noted earlier, in determining that he was sure that the only inference to be drawn was that the appellant was acting in concert with Qi Jinying and stole the three mobile telephones, the magistrate stated that he had regard to all the evidence but :

“… in particular the observations of the appellants prior to their apprehension and their possession of the mobile phones exhibits P1 and P2 shortly after their loss. ….”

21. Of the issue of the period of time that had elapsed from the theft of the mobile telephones, the subject of Charges 1 and 2, it is to be noted that the evidence was that they were last known to be in the possession of their respective owners the one 1 hour and 50 mins and the other two to three hours earlier before they were found in the possession of first Qi Jinying and latterly the appellant.  The issue of the relevance of “recent possession” was addressed specifically in counsel for the then defendants’ final speech.  The editors of Archbold Hong Kong, 2005 describe the matter thus (22-94) :

“Every case depends on its own facts.  There is no magic in any given length of time.  However, it is submitted that in many cases where the only evidence is that of recent possession, it will be impossible to exclude the possibility that the defendant was merely a receiver of the stolen property: in such cases, a count of burglary ought not to be left to the jury.  However, that applies where recent possession is literally the only evidence.  The reality is that in the great majority of cases there are other pieces of evidence that tend to point the case one way or the other.  It would be impossible to compile a definitive list of circumstances that might be relevant.  They will include, however, the time and place of the theft, they type of property stolen, the likelihood of it being sold on quickly, the circumstances of the defendant, whether he has any connection with the victim or the place where the theft occurred, anything said by the defendant and how that it is in or does not fit in with the other available evidence.”

22. I am satisfied that is not a case in which “recent possession” is literally the only evidence.

23. In this case, as he stated he did, the magistrate was entitled in this context to have regard to the evidence as to the observations of the appellant and Qi Jinying prior to their apprehension.  In particular, of relevance is the fact that the magistrate determined that the appellant and Qi Jinying were selling the three mobile telephones.  Clearly, they were items of property, of value and easily sold on.  Moreover, the sale was of not one but of three mobile telephones and took place in the context, in respect of Qi Jinying, of her arrival barely four hours earlier into Hong Kong, and in respect of one of the mobile telephones within a maximum of 1 hour and 50 mins of its loss.

24. In my judgment, the magistrate was entitled to draw the inference he stated he did draw from the evidence led at trial that he accepted.

25. There is some force in Mr Allen’s submissions that the magistrate had accepted testimony of PW3 in respect of some matters that are not supported by other evidence, contrary to the statement of intent that he made in his Reasons for Verdict.  However, relating as they do to the issue of the knowledge of Qi Jinying by the witness, PW3, and his reasons for visiting Qi Jinying whilst she was detained in custody pending trial they are not directly material to the issues determination of which was crucial at trial.  In his evidence directly material to the matters in issue of which PW3 testified, namely that the appellant handed him three mobile telephones and, secondly, that he did not hand over any money to the appellant or Qi Jinying, PW3 was supported, as the magistrate stated, by the evidence of PW4.

26. Of the complaint that the magistrate did not explain how he resolved the inconsistency between PW3 and PW4 as to the manner in which the mobile telephones were handed over to him and what PW3 did with the mobile telephones on receiving them, it is to be noted that the magistrate was alert to the discrepancies in their evidence, and in the context of accepting the evidence of the handing over of the three mobile telephones in the absence of any money passing he said :

“…. In doing so I bore in mind there were discrepancies in their evidence as to whether the mobile phones were handed by D1 and D2 in one go or one by one and whether PW3 tested the mobile phones.  These discrepancies were not material and in no way caused me to doubt the evidence the appellants were selling three mobile phones to PW3.”

27. In my judgment, the magistrate was entitled to describe those discrepancies as immaterial and to move on to make the findings that he did.

28. The complaint that there was no evidence that the mobile telephone, the subject of Charge 3, was stolen is correct to the extent that there was no “direct” evidence.  However, that the property was stolen clearly may be proved by circumstantial evidence.  In that respect the magistrate stated :

“…. In reaching my findings I did not lose sight of the fact that there was no evidence of ownership of exhibit P3 and therefore no evidence of how the phone came to be lost.  Clearly the phone was valuable and had not been abandoned.  The submission of Mr Kwong did not cause me to doubt that the only inference to draw on all the evidence was that the appellants acting in concert stole this mobile phone.”

29. Plainly, the magistrate was entitled to make the determination that he did that the mobile telephone being an item of some value had not been abandoned.  The three mobile telephones involved are all new or newish telephones.  In my judgment, the magistrate was entitled to draw the inference that he stated he did that Qi Jinying and the appellant acted in concert and stole that mobile telephone.

30. Accordingly, in my judgment there is no merits in any of the grounds of appeal against conviction and the appeal of the appellant is dismissed.