THE QUEEN v. LAU MAN CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.636 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant was jointly charged in the Magistrate's Court with another defendant with stealing a gold necklace and a gold wrist chain, the property of an unknown person. This appellant was the 1st defendant. Both defendants pleaded not guilty, but were both, found guilty after trial.

2. The prosecution evidence was that, on the nay and near the place mentioned in the particulars of the theft charge, a man had just alighted from a bus when he heard some people shouting. He saw 2 males running and being chased by the shouting people. A policeman on a motorcycle rode past the witness, and some of the chasing group made a report to him and then pointed in the direction where the 2 men had been running. The policeman went off in that direction on his motorcycle, saw the 2 men running to a temporary housing area dismounted from his motorcycle and then pursued them on foot.

3. Eventually, he found them hiding under a podium. He brought them out from their hiding place, and in that hiding place he found a broken necklace. After other policy help arrived one of the policemen who came to help him found somewhere in the vicinity another item of jewellery, a old wrist chain. There was some suggestion in the evidence that one of the articles was recovered front under a layer of dirt. The 2 were arrested and subsequently charged with theft. That, in essence, was the evidence for the prosecution. No evidence was adduced by or on behalf of the appellant and the other defendant, and as I said earlier both were found guilty.

4. This appellant now appeals against conviction.  The learned magistrate in coming to his conclusion to convict referred to the circumstantial evidence which I have just related and to Noon v. Smith 1964 1 WLR 1450, and said that on the basis of the principle to be found in that case, he was satisfied that the circumstantial evidence before him established that a theft had taken place notwithstanding the absence of direct evidence to that effect.

5. Mr. Matthews, who appears for the appellant today, relies on a number of, grounds of appeal the gist of which amounts to this: that the circumstantial evidence relied on by the magistrate was not sufficient to establish beyond reasonable doubt, the ingredients of the offence, in particular, it was insufficient to establish that there had been a dishonest appropriation of the Property.

6. Mr. Forlin, on behalf of the respondent, concedes that the appeal should be allowed to the extent that the charge charge of theft was inappropriate in the circumstances. He submits that the appellant should be retried on a charge alleging an offence under s.30 of the Summary Offences Ordinance. He does, however, point out that the maximum sentence for a s.30 offence is imprisonment for 3 months, and that the appellant has already been in custody for 10 weeks.

7. The man who alighted from the bus said that he had heard a cry of "snatching".   The learned magistrate did not rely on this evidence no doubt because he thought that it wasn't admissible evidence so far as the proof of theft was concerned. There has been ho argument addressed before me on this point, but it may sell that the evidence was admissible as part of the res gestae. However, as that was not a matter relied on by the magistrate, Mr. Forlin feels that he cannot oppose the submission by Mr. Matthews regarding the lack of evidence of dishonest appropriation.

8. I think, therefore, that the appeal must be allowed to quasi the conviction. Assuming that I could do what Mr. Forlin suggests, I see no point in ordering a retrial on a charge under s.30 of the Summary offences ordinance seeing that the appellant has already served a sentence almost equivalent to the maximum under that sections. I think that the only sensible order to be made in the circumstances is to allow the appeal and quash the conviction and the sentence. That is the order I shall make.