HKSAR v. PHAM THI NGA

HCMA559/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.559 OF 1998

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J U D G M E N T

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1. The Appellant Madam Pham Thi-nga was tried and convicted of one count of theft, contrary to s.9 of the Theft Ordinance before a magistrate and was sentenced to 14 months' imprisonment. This is her appeal against both conviction and sentence.

2. The alleged incident took place in the afternoon of 23 March 1998 in the vicinity of the Kwun Tong MTR station. The victim Mr Chung who gave evidence as PW1 at the trial was in the business of buying and selling second hand cellular phones. Earlier that afternoon he bought a used cellular phone in the Kwun Tong Plaza and placed it inside a plastic carrier bag which he was carrying. As he walked towards the MTR station, he noticed two females doing business with another second hand phone dealer. One of the two females was the Appellant of this case.

3. The witness approached the phone dealer and as he spoke to him he noticed the Appellant was standing very close behind him and at about the same time, he felt that his carrier bag was touched. Very soon afterwards the witness checked his bag and found that the cellular phone he bought earlier was missing. He gave chase and caught up with the Appellant and her friend. He accused her of stealing his phone and asked her to return the phone. The Appellant denied and as the Appellant spoke very little Cantonese, a dispute ensued. In the heat of the moment, the Appellant struck the witness with her handbag and thereby smashing his pair of spectacles. PW1 suggested that they should go to the police station in the vicinity and resolve the matter.

4. At about the same time, PW2 and PW3, both of whom were teenagers, passed by and saw the commotion and stopped to watch. As PW1 and the Appellant left for the police station they both followed at a short distance behind. When the Appellant reached a spot adjacent to the Jockey Club Clinic car park both witnesses saw the Appellant throwing a cellular phone into a car park below. PW3 went to the car park to recover the phone and the matter was reported to the police. The Appellant was arrested and later charged with the present offence.

5. The Appellant elected to give evidence and she denied that she had taken the phone from PW1 and said she was wrongly accused of the offence. She had never threw away the phone at any time.

6. The female friend who was with the Appellant at the time of the incident was called as a defence witness. She told the Court that on the afternoon in question, she and the Appellant were looking for work in the Kwun Tong area and the Appellant was wrongly accused of a crime which she had never committed.

7. There are three main grounds of appeal. The first relates to the apparent conflicts in the evidence of the kind of clothing which the Appellant was wearing at the time. The Appellant said that she was wearing crimson red corduroy trousers and PW1 said the two women he saw were both wearing denim upper garment. PW3 told the Court that the Appellant was wearing denim jacket and jeans. It was suggested by Ms Baker for the Appellant that the discrepancies in the descriptions would have the result that the identity of the thief was not established beyond doubt.

8. On this point I think one should examine the circumstances under which the identification of the Appellant was made. It is not in dispute that the events took place in broad daylight : it was about 4:25 p.m. Both PW2 and PW3 said that the incident lasted for about 15 minutes during which they had the opportunity of observing the Appellant at a distance of only several feet. PW2 said the Appellant had never left his sight. It is important to note the Appellant herself admitted that she had hit PW1 with her handbag. This very act was witnessed by PW2 and he told the Court that the person who hit PW1 with the handbag was the same person who threw the phone into the car park. The learned Magistrate accepted the evidence of PW2 and PW3, and based upon which he established the identity of the thief as that of the Appellant. The witnesses were never asked about the colour of the clothing which the Appellant was wearing and what was described as significant discrepancies were, in my view, immaterial.

9. The next point taken by the Appellant was that there were no or no sufficient evidence for the Magistrate to find that the cellular phone which was seen to have been discarded by the Appellant and subsequently recovered by PW3 was the property of PW1.

10. It was suggested that the phone was a very common model and it could have been the property of another person. Ms Baker referred to the answer of PW1 when he was asked whether he was able to say the phone recovered by PW3 from the car park was his and he was recorded to have said that he thought it was his. It was contended by Ms Baker that the way in which the witness answered the question suggested uncertainty in the mind of the witness. The evidence before the learned Magistrate was that PW1 bought a similar model cellular phone shortly before 4:00 p.m. and found it to be missing after he had noticed the Appellant standing very close to him. The two teenagers saw the Appellant throwing a phone into the car park and PW3 recovered it moments later. The phone was similar to the model which PW1 had found to have been taken from his carrier bag. When the learned Magistrate accepted the first three prosecution witnesses as reliable, it must have been open to him to find that the phone retrieved by PW3 from the car park was the same one that was stolen from PW1 by the Appellant earlier.

11. Another ground of appeal was that the learned Magistrate had allowed himself to suffer a procedural impropriety when he allowed PW2 to remain in Court while PW1 was giving evidence and also for PW2 to be in Court when PW3 gave evidence. If one is to look at the transcript of proceedings in detail, and I have no doubt that this was what Ms Baker did before she drafted this particular ground of appeal, one would notice that PW2 was asked to come into Court momentarily for the sole purpose of allowing PW1 to identify PW2 as one of the teenagers who had assisted him that afternoon in apprehending the thief. Likewise, when PW2 gave evidence, PW3 was asked to come into Court to allow himself to be identified by his friend. Nothing that was done could have been remotely suggested to be improper. I can see no merit whatsoever in this ground of appeal.

12. The final ground of appeal on conviction was that the Magistrate had misapplied the standard of proof. This ground reads :

" The learned Magistrate erred in coming to his decision on a balance of probabilities, rather than beyond a reasonable doubt - stating that 'minor contradictions' between the evidence of the three prosecution witnesses would not affect his decision while the contradictions between the Defendant/Appellant and DW2 was fatal to their credibility."

I am startled by the way in which this ground was drafted and that the Magistrate was being criticized for misapplying the standard of proof. In my view, this is but a thinly disguised attack the substance of which is nothing more than that he should have preferred the evidence of the defence to that of the prosecution witnesses. Time and again the Appellate Courts had indicated that the issue of credibility of witnesses is best left to the tribunals of fact as they have the unparalleled advantage of observing the witnesses when they gave evidence. It follows that they would be in the best position to decide which part of the evidence, if at all, of a witness to accept or to reject. Again I cannot find any merit in this ground.

13. The learned Magistrate was entitled to come to the finding of guilt as he did. In my view, the conviction is neither unsafe nor unsatisfactory.

Sentence

14. The Appellant was sentenced to a term of 14 months' imprisonment. The learned Magistrate referred to the case of R. v. V.Y. Van Kien [1991] HKLR 422 which states that on conviction after trial on offences of pick-pocketing, the appropriate sentence should be a term of 15 months' imprisonment with upward adjustments for aggravating factors.

15. This sentence of 14 months, when viewed in isolation, cannot be criticized in any way. The Appellant was sentenced to eight months' imprisonment suspended for 24 months on 14 July 1997 for possession of a forged document of identity. At the time of the present offence, the suspended sentence was operative and the Magistrate had quite rightly activated the suspended sentence in full so that the Appellant is serving a total term of 22 months' imprisonment.

16. It is however not apparent from the Reasons for Sentence that the learned Magistrate had addressed himself to the totality principle for if he did, he would have found the present consecutive terms of 14 and 8 months to be manifestly excessive. I would, therefore, set aside the present term of 14 months and substitute it with a term of 10 months, but I would not disturb the Magistrate's decision to activate the suspended term.

17. The Appellant will have to serve a total term of 18 months' imprisonment.