HKSAR v. LI KWOK KI

HCMA 258/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 258 OF 2003

(ON APPEAL FROM KCCC 18245 OF 2002)

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J U D G M E N T

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1. This Appellant was convicted of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210. He was sentenced to 6 months' imprisonment. He appeals today against conviction only. Prior to the hearing, no grounds of appeal other than the standard ones were put before the Court.

2. Today the Appellant, who appeared in person, applied for a further adjournment so that he could go and get documents that he believed were held by Legal Aid. He did not specify what those documents were, but on enquiry he appeared to refer to a transcript of the oral evidence.

3. The Appellant had been granted a substantial adjournment on 29 April 2003 because he had only just received a refusal from Legal Aid Department in respect of his application to be represented. He told the court at that time that he needed 1 1/2 months' time to find a solicitor, but he has done nothing in the interim to prepare for this appeal, or to bring it forward. For that reason, the present application for an adjournment was refused.

4. Apart from the general grounds of appeal contained in his Notice of Appeal, the Appellant's main point appeared to be a complaint that the Magistrate, wrongly, had found PW1 to be honest and financially stable, when according to the Appellant, PW1 had admitted taking the Appellant's money to spend without his consent. He further stated that PW1 was not financially stable, because he was indebted to the bank for $2 million and was being pursued by the bank for that sum.

5. The Appellant did not explain clearly why this allegation was relevant to the particular facts of the case, though presumably his real complaint was that the Magistrate had relied on and accepted PW1's evidence.

6. The facts of the case were not in dispute. The Appellant had asked PW1, who was his business partner, to lend him some money. This has been accomplished by the partner allowing the Appellant to pawn a Rolex watch, owned by the partner, which was valued at about $100,000.00 approximately.

7. A written agreement between the Appellant and PW1, dated 9 February 2001, stipulated that the watch should be pawned for a sum not more than $20,000.00. The watch was pawned for that sum and thereafter on 4 separate occasions, with the consent of the owner, PW1, the Appellant extended the pawning on 4 October 2001; 10 February 2002; 10 May 2002 and 8 September 2002. A new pawn ticket was issued for each extension. The Appellant's practice was to endorse the original ticket for the owner, who was holding it for safe-keeping.

8. On 16 March 2001, the Appellant asked the pawnbroker for a new ticket saying the ticket was lost and asked also that the amount of the loan be increased to $31,000.00. That increase was agreed by the pawnbroker and a new ticket was issued. In October 2001, the Appellant asked the pawnbroker for another extension which was granted. On 13 November 2001 the Appellant redeemed the pledge.

9. The owner, PW1, took the original pawn ticket to the pawnbroker in September 2002 in accordance with the final extension date endorsed on the ticket, which was 8 September 2002. At that stage, he learned that the watch had been redeemed nearly a year before.

10. Eventually he made a report to the police.

11. The defence case at trial was that the Appellant had sold the watch in Shenzhen for about $33,000.00 making a small profit. It was the Appellant's contention that he had the owner's permission to redeem the pledge and sell the watch. The reason for the arrangement, according to the Appellant, was that the owner owed him a large sum of money in consequence of business dealings between them. He denied ever acting dishonestly.

12. The Magistrate having heard the evidence was satisfied that the Defendant had acted dishonestly in appropriating the watch and later selling it. He was satisfied that at the time he redeemed the pledge the Appellant intended to deprive the owner permanently of the watch.

13. The Magistrate examined the evidence with care and in detail having regard to the general authorities on theft. He was clearly not impressed with the Appellant's honesty as a witness and considered that the matters he raised in his defence did not bear scrutiny when viewed against the facts that were not disputed.

14. Having found the Appellant's evidence unworthy of belief, the Magistrate nevertheless did not place any part of the burden of proof on the Appellant and gave himself the appropriate directions. In particular he ruled out of his consideration, as being irrelevant, the allegations by the Appellant that he had taken the watch as recompense for business disputes between him and PW1 that allegedly occurred in mid-2002, some time after the redemption. The Magistrate had been made aware of the Appellant's allegations of disputes and the possibility of bias by PW1. He found PW1 was a reliable witness and rejected the Appellant's allegations.

15. The Appellant has not advanced any grounds that lead me to conclude that this conviction is unsafe or unsatisfactory.

16. I am satisfied that the Magistrate took careful note of the evidence and looked at the question of PW1's reliability, as he should have done. Having done so, he found he was able to rely on him as a honest witness. That was a matter for the Magistrate to decide.

17. There are no merits in this appeal, which is dismissed.