HKSAR v. NGUYEN THI HUONG

HCMA326/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 326 OF 1998

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J U D G M E N T

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1. The Appellant appeals against a conviction for attempted theft after trial.

2. The prosecution's case was that in the evening of 17th January 1998, the first and second prosecution witnesses, being husband and wife, were shopping inside the U2 Shop at the ground floor, No.15, Sai Yeung Choi Street in Mongkok. At the time the shop was quite crowded, and the first prosecution witness noticed the Appellant standing behind his wife, putting some fingers of her right hand inside his wife's handbag which was strapped over her right shoulder. At first, this witness thought that the Appellant was just walking past, but when his wife moved forward and the Appellant also followed her moving forward and inserted her fingers a second time into his wife's handbag, this witness then shouted "pickpocket" and accosted the Appellant. The Appellant then flung off the witness' hand, saying "no" in English, and tried to leave the shop but was restrained by the shop's staff.

3. The second prosecution witness also gave evidence, but quite obviously she was unable to testify as to what happened until she heard her husband shouting "what's going on? Pickpocketing.". She then turned round and saw the Appellant saying "No, no, no, no" about two feet behind her. The Appellant then tried to leave the shop but was stopped by a shop assistant whom the second prosecution witness said was a female staff of the shop and who was bitten by the Appellant on the hand.

4. The third prosecution witness was a male shop assistant at the U2 Shop at the material time. When he heard shouts of "Pickpocketing" coming from the middle part of the shop, he went over and saw PW1 and PW2. PW1 pointed out the Appellant accusing her of pickpocketing. PW3 then saw the Appellant rushing towards the entrance of the shop and he went up to catch hold of the Appellant. The Appellant resisted and bit his hand. He was able, however, to prevent her from leaving the shop and a report was then made to the police.

5. At the trial, the Appellant was represented by the Duty Lawyer Scheme and gave evidence in her own defence. She said she came to Hong Kong from Vietnam to look for her boyfriend, Ah Ming, but could not give his full name. She went to the shop on the evening of 17th January 1998 to buy clothes. Her handbag became entangled with the handbag of the second prosecution witness whilst inside the shop, and she tried to disentangle them when the first prosecution witness came up, tapped her on the shoulder and accused her of pickpocketing. She waived her hand and while waiving her hand, touched the handbag of the second prosecution witness. Then the third prosecution witness, the shop assistant, came over and pulled her inside the shop. She admitted hitting PW3 with her chin but denied biting him.

6. The Appellant also gave very much background evidence as to why she came to Hong Kong. The reason was to borrow money from her boyfriend, Ah Ming, so as to hospitalise her mother due to her mother's illness.

7. The learned Magistrate found PW1 and PW2 to be honest and credible witnesses, giving their evidence in a straightforward manner, simply yet cogently and believed them in what they said. On the other hand, having assessed the Appellant's evidence and having observed her demeanour, the learned Magistrate did not find her to be a truthful witness, but found her to be evasive, particularly as to how she came to touch the handbag of the second prosecution witness. The account given by the Appellant of her handbag getting entangled with that of the second prosecution witness was never put to either PW1 or PW2 in cross-examination and was never mentioned by the Appellant in her Statement to the Police under caution, which was admitted by the Appellant to be voluntarily made. Furthermore, the Appellant's denial of biting PW3 was never put to PW3. In her cautioned statement, the Appellant said she came to Hong Kong to look for her boyfriend, there was no mention of any intent of borrowing money from him for her mother's illness. These are some of the reasons listed by the learned Magistrate as to why she disbelieved the Appellant.

8. As a result, the learned Magistrate was satisfied that the Appellant did put her hand into PW2's handbag in an attempt to steal from the handbag and convicted the Appellant after trial.

9. Four grounds of appeal have been put forward in this appeal. I am grateful to Mr Yeung for succinctly reducing the arguments in a skeleton form. The first complaint by the Appellant of the Magistrate was that the Magistrate failed to consider whether the facts as proved were sufficiently proximate to the complete offence. The law on attempt in Hong Kong is the Common Law on attempt and the law is that the act complained of must be more than merely preparatory for committing that offence and that that act must be a step towards the commission of the offence.

10. It is true that the learned Magistrate, in her Statement of Findings, did not refer to any formulations as to proximity, or that the act was more than merely preparatory. I cannot rule out the possibility that there will be cases which will involve facts, making it difficult to decide whether a certain act is or is not more than preparatory for committing the offence, and a trier of facts will necessarily have to apply such facts as found to the law. However, this is not such a case. The facts here are simple to the extreme. The learned Magistrate found as a fact that the Appellant inserted her hand or part of it, in an attempt to steal from the handbag of the second prosecution witness. Indeed, on the facts as found by the learned Magistrate, it is difficult to imagine that if the Appellant had gone one step further, she would not have been facing a charge of theft rather than attempted theft.

11. In these circumstances, I see nothing wrong in the way the Magistrate had dealt with the matter in her Statement of Findings. It has never been a requirement that a Magistrate must come out with a thesis on every aspects of the law in relation to the cases they are trying as long as it can be shown that they have applied the correct principles of law to the facts found.

12. So far as the second ground is concerned, this is a ground which has been withdrawn by Mr Yeung after it has been pointed out to him that the case before the learned Magistrate proceeded on the basis of the amended charge rather than the original charge.

13. As to the third ground of appeal, Mr Yeung complains that the learned Magistrate had disbelieved the Appellant because the learned Magistrate had herself "extracted" some answers from the Appellant by her questions and had also questioned the Appellant to test her credibility. He says that a trial judge or magistrate must not question the witness to such an extent and of such a nature as to suggest that the judge or magistrate was biased in favour of one party or believed or disbelieved a particular witness or to suggest that the accused is guilty.

14. Whilst I am in entire agreement as to that statement of Mr Yeung, I am satisfied in this case, having read through the entire transcript, that each time the Magistrate asked a question, it was either to clarify matters already being canvassed by one or the other counsel, or to clarify the interpretation. Nowhere did I find the learned Magistrate to have "descended into the arena" and I am not impressed by this ground at all.

15. Finally as to Ground 4, the complaint is that the learned Magistrate failed to properly consider the cautioned statement of the Appellant. In this case the Appellant had elected to give evidence at the trial. That evidence was by and large the same as her explanation given in her cautioned statement. The main difference in respect of the two being that her testimony in Court was given under oath or affirmation but not so the contents of her cautioned statement. In that sense, her evidence given in Court supercedes what is stated in her cautioned statement.

16. This situation is well recognized and reflected in these words of Lord Roskill in the case of Leung Kam Kwok v. R. [1986] HKLR 188 at 196 :-

"Where the accused goes into the witness box and repeats the explanation or excuse on oath there is no problem."

In Leung Kam Kwok's case, the Privy Council was dealing with the evidential value to be placed on a mixed statement.

17. Moreover, looking at the Statement of Finding of the learned Magistrate, she had fully considered the cautioned statement of the Appellant as can be seen from paragraph 10 of her Statement of Finding. I see no merit at all in this ground.

18. Accordingly, for the reasons given above, this appeal is dismissed.