HKSAR v. BAM, RAGHAV

HCMA 452/2023

[2024] HKCFI 1270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 452 OF 2023

(ON APPEAL FROM KCCC 866/2023)

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BETWEEN

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J U D G M E N T

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Appeal Against Conviction Only

1.  The appellant was charged with one count of theft and one count of possession of an identity card relating to another person. He pleaded not guilty to the charges and was convicted after trial. He was sentenced to a total of 16 months imprisonment. He was represented by the Duty Lawyer Service. He now appeals against his conviction only.

The Prosecution Case

2.  The particulars of Charge 1 are that on or about 6 November 2022, somewhere in Hong Kong, the appellant stole a Hong Kong driving licence of a Mr Lam and a Mainland Travel Permit for Hong Kong and Macau Residents (“Mainland Travel Permit”) of a Madam Ho. In Charge 2, it was alleged that on 6 November 2022, the date of his arrest, the appellant without lawful authority or reasonable excuse had in his possession an identity card of the same Mr Lam. They were a total of three cards involved in this case.

3.  It was an admitted fact that the Madam Ho had lost her handbag containing cash and that Mainland Travel Permit on 1 November 2022. Mr Lam had lost his wallet containing his Hong Kong identity card as well as his Hong Kong driving licence on 29 October 2022. Both had separately made reports to the police.

4.  At around 5am on 6 November 2022, police officers in Tsim Sha Tsui East, in a public park stopped the appellant. They searched him and found those three cards on his person. The police had been conducting an anti-crime patrol in the area when they had spotted two drunk people sitting on separate benches in the public park near South Sea Centre. They also notice the appellant riding a bicycle and circling the two drunk people, getting closer and closer to them. That is why the police intercepted him.

5.  All three cards were found together in a compartment of a waist bag. The only prosecution witness, PC 22700 asked the appellant in English where he got the cards from and asked him to call the owners of the cards. The appellant told the officer that he had picked up the cards in Jordan last Friday, 2 days prior and did not know he had committed a crime.

The Defence Case

6.  The appellant elected to give evidence and denied riding around or near to people who appeared drunk. His case was that he told the officer when he found the cards that he had picked up those three cards yesterday, that is the day before in Jordan area.

7.  The defence case was that on 5 November 2022, he was with a friend when he walked past a rubbish collection point in Jordan and saw the three cards wrapped together lying on the street. He picked them up and intended to take them to Yau Ma Tei Police Station to hand them in. After dropping off his friend at Chung King Mansions, he suddenly remembered two of his friends were at the Star Ferry Pier so he went to join them. They talked all night and in the early hours of the morning, 6 November, he was making his way home by bicycle when the police stopped him. He had never approached, circled nor gone near any ostensibly drunk people sitting on benches in the park.

8.  When the police found the cards, he told the officers that he had found them the evening before and was going to hand them over to the police station. In other words, he had a reasonable excuse to be in possession of the Hong Kong identity card belonging to Mr Lam. In evidence, the appellant said he had his own identity card on him at the time and those three cards were of no use to him. He had not stolen them, had no intention to permanently deprive the owners of them and was going to take them to the police station.

Reasons for Convictions

9.  The magistrate properly directed himself in respect of the burden and standard of proof. He also directed himself that the appellant had a clear record; considering his credibility as well as his propensity to commit these offences. He reminded himself that if he found the appellant’s evidence true or may be true, then he must acquit him.

10.  The magistrate went on to analyse the evidence of the witnesses. He found the only prosecution witness to be an honest and reliable witness. He found the officer’s evidence to be consistent and unshaken under cross-examination. On the other hand, the magistrate found he could not accept the appellant’s evidence as credible or believable. He found it inconsistent, unreasonable and illogical.

11.  He took into account the appellant said he intended to take the cards to the Yau Ma Tei Police Station when he knew he was very close to Tsim Sha Tsui police station. When asked why he did not go there to surrender the cards he said Yau Ma Tei Police Station was closer to his home. The magistrate found that illogical. Why not hand them to the closest police station to him and why wait until sometime later to go to a police station much further away.

12.  The magistrate found the evidence of the appellant evasive when questioned further in cross-examination about why he did not go to the closest police station. He changed his evidence and became evasive on this point. The magistrate therefore found his reasons for not going to the nearest station, Tsim Sha Tsui Police Station unconvincing and unreasonable.

13.  The magistrate rejected the appellant’s evidence that he intended to hand the cards to a police station. He drew the only reasonable and irresistible inference that the appellant had the intention of permanently depriving the owners of those cards; a dishonest intention and convicted him of the 1^st Charge.

14.  It followed that he was sure on the prosecution’s evidence that the appellant did not have a reasonable excuse for possessing the identity card of Mr Lam and convicted him of the 2^nd Charge.

Grounds of Appeal

15.  The appellant was unrepresented in this appeal against conviction. He repeated the evidence he gave in the court below and relied on his defence put forward during his trial.

16.  In his notice of appeal against conviction, the appellant complained that the magistrate did not consider his statement. This ground has no merit when a reading of the Statement of Findings shows the magistrate carefully summarised the appellant evidence and analysed it in detail before rejecting it.

17.  The second ground was that the appellant complains he could not find his witness to come to trial in the court below because he was detained at the time. This witness was walking with him when he found the cards on the ground and could have assisted him in describing the route they took from Jordan to Chung King Mansions.

18.  The appellant was represented at trial and from a reading of the closing submissions transcribed in the appeal bundle, there was no mention of any prejudice to the appellant because of a difficulty in calling any defence witness. There is no merit in this ground either.

19.  The last sentence in his notice of appeal is vague and without substance. The appellant complains he has many points to support the fact he did not get justice in his trial without any further elaboration or detail either in the document or during the appeal.

Discussions

20.  I have read the magistrates Statement of Findings. This case entirely revolved around the credibility of the witnesses for both the prosecution and the defence. The magistrate had the advantage of having heard and seen the witnesses give evidence in court. He has given detailed reasons as to why he rejected the appellant’s evidence and accepted that of the police officer.

21.  A magistracy appeal is conducted by way of a rehearing on the evidence heard before the magistrate. An appeal should be allowed if it is just for the conviction to be quashed. I cannot find any error in the reasons for the convictions either in law or in procedure. The findings of the magistrate are sound and I see no reason to disturb the convictions in this case.

22.  If I had been the trial magistrate and heard the evidence as set out in the Statement of Findings and the closing submissions of defence counsel, I too would have reached the same decisions and convicted the appellant of both charges.

23.  Therefore, the appellant’s appeal against his conviction is dismissed.