HKSAR v. VAN HUIJSTEE, ANTONIUS MARIUS JACOBUS

HCMA 459/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 459 OF 2010

(ON APPEAL FROM TWCC 1120 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was convicted after trial before Magistrate, Mr John Glass, Esquire, of one count of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.

2.  The Appellant was convicted and was fined $3,000.  He was ordered to pay compensation of $1,400 to the victim, together with $590 for loss of taxi revenue.  The Appellant appealed against his conviction only.  He was represented at trial by counsel, Mr John Hemmings, who represented him on his appeal.

3.  The basic facts were not in issue.  The Appellant and his colleague (DW1) boarded a taxi at the taxi rank at the airport.  The Appellant sat behind the driver (PW1) in the back seat and his colleague sat to the Appellant’s left.  The taxi driver, the alleged victim, had been waiting for a lengthy period in the taxi rank.  At intervals he reclined his seat and used his shoulder bag as a pillow, dozing intermittently as the taxi queue moved forward.  His wallet was in the outside flap pocket of the shoulder bag. 

4.  The Appellant and his colleague boarded the taxi at about 12:00 midday and asked to be driven to Wanchai.  The Appellant had boarded first and asked PW1 to wait for a short period for DW1 who was finishing a cigarette at the airport’s smoking area and who boarded the taxi soon after.  PW1 drove towards and through the taxi tunnel which was used by taxi drivers only.

5.  It was the prosecution case that shortly after starting off, PW1 saw, in his rear view mirror, the Appellant take out PW1’s wallet from his shoulder bag which had fallen into the rear passenger area.  He saw the Appellant take out cash from the wallet and put the notes he removed into his own wallet.  PW1 stopped the taxi, told the Appellant the money and the wallet were his and asked him to give them back.  According to him, the Appellant refused, at which point PW1 turned round and snatched the wallet back.  He then took his identity card and driving licence from his wallet and pointed to the driver’s identity plate at the front of the taxi for comparison.  He asked for his shoulder bag back and the Appellant gave it to him.

6.  PW1 drove his taxi a short distance outside the tunnel and parked so as not to obstruct traffic in the tunnel.  He asked the Appellant for his money back, but the Appellant said to him “no money”.  At that point, PW1 wrote a figure on a piece of paper, and showed it to the Appellant and DW1.  The Appellant repeated “no money”.  PW1 said he wrote either “1400” or “1600” but could not be sure which.

7.  PW1 locked the doors of the taxi to prevent his passengers from leaving, but the Appellant and DW1 managed to unlock the door and leave the taxi with their luggage.  PW1 shouted to alert the security guards at the airport and police arrived 5-6 minutes later.  The money from the wallet was not recovered.  There was a dispute as to how much money there had been in the wallet and in what denominations it was held. 

8.  Initially, PW1 said he had “About $,1600 with $500 banknotes and $100 banknotes inside the wallet”; (54B-C).  He was asked specifically “how many $500 banknotes?” and said “One was $500 banknote, the others were $100 banknotes” (B54M).  Later, he agreed he told the police he had lost about $1,700 from his wallet.  He had earlier counted that there was around $1,600-$1,700, and that was what he told the police. (B55H to K). 

9.  He was asked why he wrote down the figure of $1,400 or $1,600 on the piece of paper he showed to the Appellant and DW1.  PW1 said: “It was an approximate figure, an estimated figure, I could not be sure of that amount, but they were $500 banknotes and $100 banknotes”. 

“Q: I thought you said earlier one $500 note and some $100 notes.

A: Yes, correct.” (B55P to R).

10.  PW1’s statement did not mention his having written down a figure and shown it to the Appellant and his colleague, but DW1 confirmed in his evidence that 1400 had been written down.  PW1 explained “As to my recollection, I remember that I did write $1,400 to $1,600, but I could not remember which one I wrote down”. 

“Q: So you might have just written $1,400?

A: Yes”. (B56F to I).

11.  It was suggested to PW1 that it was possible he had lost the money out of his wallet, or that it had been taken from him on some earlier occasion and PW1 answered: “I can confirm absolutely the money was taken by the Defendant, because I saw it clearly” (B61B).  When it was suggested that he had just assumed the Appellant and DW1 had taken his money he answered: “The other passenger didn’t steal my money, I saw this adult male open my wallet and took out the money and put the money into his wallet.  I saw all of this very clearly, and I used Cantonese and English to give me back the money, but he refused”.  (B61F)

12.  At trial PW1 demonstrated how the money had been taken from his wallet and transferred by the Appellant, who put the bag on his knees, took out the wallet, removed the money and put it into his own wallet.  The Appellant was described as taking out PW1’s wallet with his right hand, opening it with both hands, removing the money and using his right hand to put the money into his own wallet, which he held in his left hand. 

13.  The Appellant elected not to give evidence, but called his colleague, DW1 as a witness.  DW1 had been working with the Appellant since he transferred to Hong Kong in July 2009, but he had known the Appellant longer than that as they had worked together in the region at an earlier time.  They were business colleagues returning from a business trip.

14.  DW1 confirmed he arrived at the taxi soon after the Appellant had boarded.  They had only hand luggage with them.  He said he saw the Appellant move a bit towards the right of the taxi and use his right hand to pick up a bag saying: “Oh, somebody has forgotten his bag” DW1 noted the bag was open and a wallet was hanging just inside the open mouth of the central part of the bag.  When asked what happened to the bag, DW1 said the taxi driver took it immediately.  PW1 then took the wallet, unfolded it while he was driving, took out his ID card, showed his ID card and pointed to the taxi identity plate in the front seat, saying “me”. 

15.  DW1 said that PW1 did not check the wallet or the bag, but immediately took out a piece of paper on which he wrote “$1,400” and showed it to the Appellant saying: “my money, my money, give me my money”, or something like that.  Events up to that point, according to DW1, had taken about 30 to 40 seconds.  DW1 then told the Appellant “It’s a scam, we must call the police”.  He told PW1 to stop and said they wanted to call the police, but PW1 locked the doors.  However, as he was driving slowly, DW1 opened the doors and left the taxi followed by the Appellant.

16.  DW1 estimated the taxi’s speed at that stage to be about 50 kph and while he was driving, PW1 was taking his ID card out of the wallet, or writing something, so he was driving slowly.  DW1 and the Appellant remained by the car until police arrived.

17.  DW1 had his bag and wallet checked by a police officer at the scene and later, at the police station, his person was searched thoroughly.  He had $790 in his wallet; one $500 banknote and two $100 banknotes, together with $90 in small bills.

18.  DW1 was asked to view CCTV footage showing the taxi rank at the time when he and the Appellant boarded the taxi; he pointed out the Appellant and himself going to the taxi and the taxi being driven away.  The time gap between taxis at the time was about five seconds, in other words, one taxi left the rank every 5 seconds.

19.  It was an Admitted Fact that DW1 was arrested and cautioned at that time for the same offence of theft.  He was released from police bail on 5 December 2009 and was not charged.

20.  In summary the Perfected Grounds of Appeal (PGA) were first that the Magistrate was wrong to treat PW1 as a credible witness because his evidence was inherently implausible and materially contradicted by other evidence.

21.  It was alleged in support of this ground that PW1’s reasons for being in the airport taxi queue were not believable; that he would not have needed to use his rearview mirror in which he saw the Appellant take the money; that he would not have stopped in the tunnel as it would cause congestion and that he gave 2 different accounts of what he saw the Appellant doing.  Further the Magistrate did not address the conflict about the number and denomination of notes that were allegedly stolen and the number and denomination of notes found in the Appellant’s possession.

22.  Other grounds were that the Magistrate:

(1)  failed to consider sufficiently the Appellant’s good character;

(2)  failed to give adequate reasons for rejecting DW1’s evidence;

(3)  failed to consider the inherent improbability of the Appellant’s behaving; as PW1 alleged he had, in the presence of DW1;

(4)  took too little time to fully and properly consider the evidence and the inferences he should draw from it.

23.  To deal with the last ground first, it was alleged that the Magistrate took insufficient time to assess the evidence because he took only an hour to consider his verdict.

24.  The transcript shows that the Magistrate initially told counsel that he needed some time to consider his verdict, but after discussion as to a resumed hearing date it became clear that counsel for the defendant could not attend on a number of dates.  It was apparently in an effort to accommodate defence counsel’s diary, that the Magistrate said he would stand down the case to see whether he could reach a decision at that time.  This was at 4:40 PM.

25.  The court reconvened at 4:57 PM so that the Magistrate could view the CCTV clip (Exhibit D1) and at 4:59 PM the Magistrate left the court again.  He returned at 5:51 PM and delivered a written judgment which in almost all respects was the same as the Reasons for Verdict produced for this appeal.

26.  The trial had been short.  There were only two live witnesses and their evidence, coupled with submissions made by defence counsel, would not have caused an experienced Magistrate any difficulty in composing a judgment in about an hour as the Magistrate did here.  There is no substance in the allegation that the Magistrate did not give full and proper consideration to the evidence before delivering judgment.

27.  There were several areas of conflicting evidence which the Magistrate dealt with.  The Magistrate had to consider whether as PW1 said, the taxi had stopped in the tunnel or, as DW1 alleged had been driven slowly through it.  The Magistrate dealt with the matter in his Statement of Findings (B17-para 64)(d)(e) and 7.  He was not impressed by the quality of the CCTV footage and rejected it after considering it.  Counsel for the Appellant complained that the Magistrate was wrong to find PW1’s estimate of the time he stopped in the tunnel not material and wrong to reject the CCTV evidence.

28.  The CCTV film showed PW1’s taxi on the rank and the Appellant and later DW1 boarding the taxi.  It showed the taxi leaving and about 5 seconds later another taxi follow the taxi of PW1 as it left the rank.  It did not show road conditions or traffic in the tunnel e.g. whether there was room for one vehicle to pass another or, whether congestion was likely and it must be said that the quality of the film was not very good.  It was open to the Magistrate to reject the CCTV evidence if he did not consider the quality good enough, or if it did not help him reach a decision.

29.  DW1 contradicted what PW1 had said about stopping in the tunnel.  He claimed that the taxi had been driven slowly through the tunnel and had stopped outside the tunnel exit.  The Magistrate did not consider that this was a conflict about a material matter, and he found that given the circumstances which PW1 and DW1 described, it was unlikely that PW1 would have noticed the traffic conditions outside because of his concern about his missing money.

30.  In the circumstances that was not an unreasonable inference.  PW1 saw the Appellant take the money, a process which he said took several seconds.  He claimed he stopped the taxi and told the Appellant the wallet was his, but the Appellant said nothing when the PW1 asked him to return the money.

31.  PW1 took out his Hong Kong identity card and driving licence to check them against the taxi driver identification plate in front of the taxi, showing the Appellant that the wallet was his.  He asked the Appellant to give back the shoulder bag and the Appellant did so.

32.  PW1 said that these events occurred while inside the tunnel.  To avoid obstructing other road users he resumed driving to the exit of the tunnel and stopped outside.  He asked for his money but was told by the Appellant “no money”.  He wrote 1400 or 1600 on a piece of paper and showed it to the Appellant who again said “no money”.

33.  PW1 had not mentioned the piece of paper in his witness statement, but confirmed it in cross-examination at the trial.  He said he did not mention it to the police because he was not asked about it and it had slipped his mind.  DW1’s evidence referred to his being shown the paper with the figure “1400” on it.

34.  It was possible for PW1 to have stopped in the tunnel for a short time and, given his actions to retrieve his wallet and bag at that time, it is unlikely he could have carried them out unless he had stopped. However, that he could have stopped for as long as 3 minutes, as he stated in evidence, was highly improbable.

35.  The Magistrate found that knowing whether the taxi stopped in the tunnel, or whether it drove through slowly, did not materially assist him in deciding whether the Appellant had stolen the money from PW1’s wallet.  The route through the tunnel was short and a number of things were happening in the taxi which would serve to distract everyone’s attention, or make their memories of events unreliable.  The Magistrate did not accept that DW1 would have paid particular attention to traffic capacity in the tunnel and did not accept that PW1 drove slowly through the tunnel without stopping.

36.  The Magistrate found, as he was entitled to, that neither PW1 nor anyone else was concentrating on what was going on outside the vehicle when it was in the tunnel.  It is unlikely that PW1 would have been able to stop for a lengthy period in the tunnel without causing congestion, or without exciting the attention and the horns of other drivers.

37.  Another area of conflict was the number and denomination of the notes.  Mr Hemmings alleged that the Magistrate did not address the discrepancy between the denominations and numbers of the notes said to be stolen by the Appellant and the notes found in his possession on arrest.  It was an Admitted Fact that the Appellant and DW1 stayed by the car until police arrived.  Although there was no evidence from PW1 that he saw any transfer of notes between the Appellant and DW1 or that he did not see any other disposal of notes, there was time and opportunity for any transfer or disposal to be accomplished.

38.  The Appellant and DW1 left the car while it was still moving taking their luggage with them.  Clearly PW1 could not have left the car immediately at that time, as he had to park the taxi outside the exit.  PW1 also communicated with the security guards which would distract his attention for a while.  There was thus an opportunity for the money to be transferred, or swapped, without PW1 seeing it.  The agreement of PW1 that the Appellant and DW1 were in full view all the time, did not preclude their dealing with the notes, or transferring the Appellant’s wallet from the jacket where PW1 said he saw it placed to the suitcase where it was eventually found.

39.  Magistrates are encouraged when considering their verdict to examine the inherent probabilities in a situation.  In this case it was suggested for the defence that PW1 was operating some kind of extortion racket.  However, as the Magistrate found, it was highly unlikely that PW1 would have perpetrated a scam on two men who were foreigners and who, as far as he knew, did not speak Cantonese, without his having prepared very carefully details of the contents of his wallet and in particular the denomination and number of the notes which allegedly had been removed from it.  It seems improbable also, if PW1 was operating a scam, that he would not have invented an account or explanation, to cover the matter of the disposal or transfer of the notes.

40.  He might have added that it was improbable that PW1 would have run the risk of himself and/or the vehicle being off the road for an unspecified period while the police investigated the allegation, an allegation which, if converted into a criminal charge, would require PW1’s attendance as a witness at trial.  Both those eventualities would have cost PW1 his income for the time he was not working.

41.  The Magistrate addressed the matter of the notes specifically and concluded that PW1’s not knowing the exact contents of his wallet was occasioned by his poor recollection of his earnings over the preceding shift period.  He was sure however that PW1 had not fabricated the account of the notes being stolen and was not being untruthful.

42.  Overall the issue on this appeal is whether the Magistrate properly evaluated the evidence before him.  I note and accept the submission made by counsel for the Appellant that a hearing on appeal from a decision of a Magistrate is a rehearing on the evidence before the Magistrate, together with such other evidence as this court may permit.

43.  In effect this court was asked to substitute its own evaluation of the witnesses and the evidence from a reading of the transcript, for that of the Magistrate who saw and heard the witnesses at trial.  Before doing so the court has to decide whether the Magistrate in some way failed in his task.  It must ask whether the evaluation by the Magistrate, as set out in his Statement of Findings has been shown to be irrelevant, lacking, careless or flawed in any substantial way.  In my view the argument and submissions of Mr Hemmings have not demonstrated those faults.

44.  When considering the grounds of appeal and the Magistrate’s evaluation of the case it is necessary to bear in mind:

“ … microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A Magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

[Per Stock J. in The Queen and Kwong Wing On and Chung Wai Man HCMA 574/1996]

45.  The Magistrate was aware of the areas of conflict, and possible discrepancies and assessed them in the Statement of Findings.  In particular he dealt with the material areas of conflict above.  He considered the question of inherent probabilities and clearly accepted PW1 as a witness of truth.  That is not to say that he ignored the evidence of DW1, or that he failed to bear in mind his good character, or the good character of the Appellant himself.

46.  Counsel for the Appellant submitted that the Magistrate had not considered the improbability of the Appellant behaving in the manner PW1 alleged he had.  Allied to this was a complaint that the Magistrate had not given adequate reasons for not accepting the evidence of DW1.

47.  Mr Hemmings submitted that the Magistrate had stated, wrongly, that there was no evidence from the Appellant with which to contradict, undermine, or explain the prosecution evidence and that he erred in doing so because the evidence as given by DW1 was able to cover all aspects of the incident.  However read in context, the Magistrate’s comment simply meant there was no evidence from the Appellant directly, which in factual terms was correct. (B19-B20)  The Magistrate was fully aware of DW1’s evidence and its importance.

48.  Effectively, this was a case of one witness against another.  In such cases it is not always possible for a court to set out reasons which explain or justify the court’s failure or refusal to accept the evidence of one or other witness.  In some cases the court can do little more than accept the evidence of one witness and not the other.  That is the position here.

49.  I do not find the grounds of appeal have been substantiated and I dismiss this appeal against conviction.