HKSAR v. WAN KWONG YIN

HCMA 668/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 668 OF 2009

(ON APPEAL FROM KCCC 1753/2009)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  On 26 June 2009, the Appellant appeared before a Magistrate sitting at Kowloon City Magistracy and was convicted after trial of an offence of theft contrary to Section 9 of the Theft Ordinance 210, Laws of Hong Kong. He was sentenced to a term of 18 months imprisonment.

2.  On 29 June 2009 the Appellant filed Notices of Appeal against Conviction and Sentence on the general grounds that the conviction was against the weight of evidence and that the sentence was too severe.

3.  On 3 October 2009, the Appellant appeared before me in person and stated inter alia that he did not go to the shop located at No. 62 Kowloon City Road, the location of the alleged offence, on the day in question. He stated that he made a living by dealing in second hand mobile phones.

4.  Having heard submissions from both the Appellant and the Senior Public Prosecutor, I dismissed the appeals against conviction and sentence and indicated I would hand down my reasons for so doing at a later stage. I do so now.

5.  Essentially, the prosecution case against the Appellant centred on the evidence of two police officers who observed the Appellant in the company of another man, the 1^st Appellant, at trial. It was their observation that these 2 men were involved in the theft of a mobile phone that the victim carried in her handbag.

6.  The evidence of the officers was that they observed these 2 men, one wearing a blue jacket and one wearing a black jacket, arriving at the shop at 62 Kowloon City Road. The man in the blue jacket went inside the shop whilst the man wearing the black jacket waited outside. After one or two minutes the officers observed the man in the blue jacket coming out of the shop and hand to the man in the black jacket a mobile phone, which he quickly put into his right top pocket. The two men then walked into a small lane. The officers chased them. One of the officers, PW3, intercepted the man in the black jacket outside No. 9 Kowloon City Road and he testified to the fact that from the time that he saw this man receive the phone until the time he intercepted him, he never lost sight of him. The man the officer intercepted was the Appellant, and as a result of a search, the mobile phone was discovered.

7.  The Appellant gave evidence and said that he had not taken part in the theft. He said he was a part-time telephone dealer and on the morning of the day in question a man called “Chow” contacted him to say that he had a telephone to sell to him. He said that he met Chow in the vicinity of where the offence was alleged to have been committed and he paid him $500 for the telephone. He also disputed that the telephone found in his possession belonged to the victim.

8.  This latter point, the learned Magistrate clearly found had no merit as the victim had earlier pointed out a photograph of her husband displayed on the phone when she was in the course of giving her evidence.

9.  The learned Magistrate in his Statement of Findings was meticulous in his evaluation of the evidence regarding the identification of the Appellant. He accepted the evidence of the prosecution witnesses and found the evidence of the Appellant to be not credible. He it was who saw and heard the witnesses testify and was quite entitled to make these findings.

10.  The appeal against conviction is without merit and fails. I dismissed the appeal against conviction.

11.  With regard to the appeal against sentence the Appellant has 6 previous convictions for theft related offences, three of which are for pickpocketing. The learned Magistrate was mindful of the case of R v. Vy Van Kien & anor. (1991) 1 HKLR 422 which sets out sentencing guidelines of 12-15 months imprisonment for a first-time offender. In addition, the court identified a number of aggravating features that should be reflected in any sentence, such as the offence taking place in crowded shopping areas. Due to the Appellant’s past history of pickpocketing and the location of this offence taking place in a crowded shopping area, the sentence of 18 months imprisonment cannot be said to be in any way excessive and I dismissed the appeal against sentence.