HKSAR v. TSE KIN WAI

HCMA63/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.63 OF 2000

(ON APPEAL FROM KTCC 1843 OF 1999)

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J U D G M E N T

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1. The appellant was charged with one count of theft. The property involved was an outboard motor. The appellant pleaded not guilty to the charge and was convicted by the learned magistrate after trial. He sought to appeal against the conviction.

2. The prosecution had called a total of six witnesses at the trial and the appellant gave evidence himself, both on the special issue and the general issue. The appellant also called two defence witnesses to testify.

3. PW1 gave evidence that he was responsible for looking after the stolen Suzuki outboard motor. He said that it was found missing on 6 June 1999, and about three weeks later, he found the engine but it had been repainted. He could, however, identify it by virtue of the serial number. PW2 gave evidence about how his rubber boat was found missing and later he saw it moored at the 1st defendant's house. The missing engine was attached to this rubber boat. PW3 was the 1st defendant's neighbour. He had assisted the 1st defendant to get the rubber boat out of the water. PW4 was the police officer who had conducted the enquiry. The appellant had made admissions to him. The other two witnesses were police officers who had participated in the investigation.

4. Having heard the evidence on the special issue, the learned magistrate ruled that the appellant's confessions were admissible (i.e. ... the verbal at the scene and the post-record, including the further questions and answers.) Her analysis of the evidence and the reasons for the ruling had been clearly stated in her Statement of Findings.

5. On the general issue, basically what the appellant said was that it was really the 1st defendant, his co-accused, who had requested DW1 and DW2 to take the outboard motor. He was merely present when that happened. He denied any knowledge that it was a stolen item. He said that he believed that the engine belonged to the 1st defendant's friend. As the magistrate observed, DW1 and DW2 had given similar evidence. However, the magistrate rejected their evidence and again she had explained the reasons in her Statement of Findings.

6. The learned magistrate found that the admissions made by the appellant at the scene were truthful and that she was satisfied that all the elements of the charge had been proved beyond a reasonable doubt by the prosecution.

7. The appellant, conducting his own appeal, pointed out that he lived up the hillside away from the sea shore. It would take him half an hour to walk to the beach. He had no use for the engine. If he had really stolen it, he would not be so stupid as to admit it. He said that no one had seen him taking it and he had witnesses to support his account.

8. The learned magistrate had seen the witnesses and heard their evidence. She came to the conclusion that the appellant had made a voluntary confession admitting his involvement in the case. She had given herself directions on the appellant's clear record, and had considered all the evidence carefully. I was not persuaded that there was any ground to disturb her findings. The appeal must be dismissed.