HKSAR v. LEUNG CHI SHEUNG

HCMA1216/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1216 OF 2004

(ON APPEAL FROM NKCC 7774 OF 2004)

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REASONS  FOR  JUDGMENT

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1. The appellant was on 25 November 2004 convicted of one charge of theft, before Magistrate Judy Ma, and on the same day, was sentenced to 12 months’ imprisonment.  He now appeals that conviction.

2. The case for the prosecution was that a Mr. Fu was travelling from China to Hong Kong on 24 September 2004.  He changed trains to take the MTR at Kowloon Tong Station.  The train was crowded, and he stood at the doorway.  When the train reached Shek Kip Mei Station the appellant boarded the train and stood near Mr. Fu on his right side.  He was facing the door and Mr. Fu was facing the inside of the compartment.  It was the evidence of Mr. Fu that he felt some movement in his right trouser pocket.  He testified that he looked and saw the hand of the appellant partly inserted into his pocket, trying to take something out.  He said he pushed the hand of the appellant away and put money, which had been partly pulled out, back in his pocket.  He asked the appellant, if he was trying to steal from him and received a denial.  They argued.  At Prince Edwards Station, the appellant left the train and tried to board the train on the opposite platform.  Mr. Fu grasped his arm to stop him and made a report to the police.  The police arrived, and Mr. Fu reported the matter to them.  The officer who attended the scene arrested the appellant for attempted theft.  He cautioned the appellant, who denied that he had stolen and said there must be a misunderstanding. 

3. The appellant elected to give evidence He said he was 64 years of age, retired and supported by his children.  He testified that he had a previous minor conviction in 1970 and had not had any convictions in the past 34 years.  He said on the day in question he went to MTR station of Lok Fu, intending to take the train to Sham Shui Po to shop.  He felt unwell and rested at the station.  When he felt better, he boarded the train and stood in the doorway.  He testified the train was crowded.  When it reached Kowloon Tong Station he saw that there was a space at a glass partition next to a seat and went over and stood there with his back leaning against the glass and used his right hand to hold a vertical pole and put his left hand at his back.  He saw Mr. Fu standing face to face in front of him.  He said Mr. Fu accused him of stealing, which he denied.  He said Mr. Fu, told him that his pocket had been picked in Schenzhen.  The appellant said that was his business and suggested that Mr. Fu make a report to the police.  At Prince Edwards Station, the appellant testified he left the train because he had to change to go to Sham Shui Po.  Mr. Fu stopped him and held him.  The police arrived and arrested him.  He said that he explained to the officer that it was a misunderstanding.

4. Mr. Boyton for the appellant raised a number of grounds of appeal.  Only one concerns me:  

“The learned and magistrate failed to deal with a significant inconsistency and/or indicate in her statement of findings how that matter was resolved.  Was it the left hand or the right hand that entered PW 1’s pocket?” 

5. I was referred to the transcript of the trial, where this passage occurred: 

“	QUESTION:	Yes, Mr. Fu when you said that you saw ... you felt there is some moving in your right trouser pocket and you look at it and which part of the hand, you see, you recall?
	ANSWER:	Here.  Here.
	QUESTION:	Towards the fingers or …
	ANSWER:	He was standing here.  His hand was putting inside the pocket like this.
	COURT:	Could you see the fingers?
	ANSWER:	No.
	COURT:	What … (indistinct) is the back of your…
	MR. LUNG:	The left arm.
	COURT:	Back of … (indistinct) …
	MR. LUNG:	The left arm.
	COURT:	Hand … (indistinct)
	MR.LUNG:	… (indistinct) left …
	COURT:	… (indistinct)
	MR. LUNG:	… (indistinct)
	COURT:	Back of … (indistinct).
	ANSWER:	That’s right.”

6. Clearly, this exchange relates to the action described by the witness of a hand being put inside his pocket and may also relate to the fact that it was a left hand.  Whatever the Court and Mr. Lung, the court prosecutor, agreed the witness also agreed.  It is of concern that the transcript does not properly reveal most of the exchange because so much of it is indistinct.  Later in the transcript this question and answer appears:

“	QUESTION:	And when you saw the hand half in your pocket, and which hand of the defendant?
	ANSWER:	Right hand.”

7. This passage clearly refers to the right-hand being used to enter the pocket of the witness.  The issue is whether in the first exchange the witness was agreeing to an action by the appellant with his left hand and in the second passage whether he refers to the same action but with the right hand.

8. The statement of findings of the magistrate is silent on the matter, as is the rest of the transcript.  Mr. Boyton argues that where such a potential material inconsistency may arise on the face of the proceedings, and is not dealt with, the benefit should be to the appellant.

9. With this I must agree.  It is unsatisfactory that the transcript is indistinct to such a degree, but I am unable to safely conclude that what the appellant agreed was not an inconsistency.

10. I have a doubt respect of this conviction, due to the inadequacy of the transcript.  The appeal against conviction is allowed, the conviction is quashed and the sentence is set aside.