HKSAR v. YUEN SIU MING

HCMA706/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.706 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of theft and sentenced to nine months' imprisonment. He appeals against conviction and sentence.

2. This is a pickpocket case. Two police officers said that they saw the Appellant open a bag which was on a woman's right shoulder and take out a $20 note. They then arrested him. The woman did not know that she had had anything stolen and they told her. She said that at this point she saw the $20 note and the purse which had come out from her bag in the hands of the police officers. The Appellant, who had the benefit of legal representation at trial, did not give evidence.

3. The Appellant has written his own grounds for appeal against conviction. The first, second and third points which he makes are not really grounds for appeal at all. They simply say that he did not plead guilty which is of course true; that the victim did not see with her own eyes that he stole the $20 which is of course true; and that, if somebody had really picked the woman's handbag, that person would not just have taken $20 leaving behind the wallet. This is mere speculation.

4. The Appellant goes on to state that there were doubts and questions in the statement of PW1 who was even unclear as to whether the Appellant was holding his T-shirt in his left or right hand. The fifth ground of appeal relates to a complaint that the police officers beat up the Appellant after arrest and he had to go to hospital. The sixth ground relates to the procedures at the police station and the refusal of bail.

5. I think the only thing that one can say about the fifth and sixth grounds is that first of all there was no evidence before the Magistrate to suggest that the Appellant had been beaten up. It was put to one of the officers that the Appellant had gone to hospital, but he said he did not know that.

6. In any event, no cautioned statement was produced so there was no question of admissibility of a statement to which police brutality might have been relevant. If the Appellant's allegations against the police are true, it is of course deplorable and he may have the grounds for a law suit against the police, or indeed, a separate criminal charge, but they are not relevant to his guilt or innocence in this case. The same applies to the complaints about police procedures and the refusal of bail.

7. The Government Counsel has very fairly pointed out the discrepancies between the evidence of the officers who said that they saw the Appellant take the $20 note out of the handbag, and the evidence of the victim herself, who said that when she turned round she saw both the $20 note and a purse in the possession of the arresting officers. There really is no explanation as to how the purse got there.

8. This is a matter that was raised at trial by Counsel for the Appellant. It was not specifically dealt with by the learned Magistrate in terms. However, he was obviously alive to the question because it had been raised by Counsel. In his brief reasons given at the time of conviction, he said that whilst there were some discrepancies between the evidence of PW1 and PW3, he did not find the discrepancies impugned their credibility as witnesses. He made a similar reference to the apparent inconsistencies in evidence in his formal Statement of Findings.

9. There was no evidence other than that of the police and the victim before the learned Magistrate, and it is clear that he considered the evidence which was before him and dealt with the apparent inconsistencies as far as was necessary. Accordingly, there are no grounds for setting aside the conviction and the appeal against conviction is dismissed.

10. The Appellant also appeals against sentence, but it is quite clear that the Magistrate has followed the normal sentencing guidelines in pickpocket cases in imposing a sentence after trial of nine months' imprisonment. While the Appellant said in his grounds of appeal against sentence that he had no previous convictions, he was not a first offender but in fact had six previous convictions which he admitted before he was sentenced. The Magistrate considered the family circumstances of the Appellant, including the fact that he has just become a father, and he obtained a report before passing sentence.

11. I cannot find anything to fault in the Magistrate's approach to sentence. Accordingly, the appeal against sentence must be dismissed.