HKSAR v. RANA, KESHER PRASAD

HCMA864/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 864 OF 2007

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J U D G M E N T

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1.  The appellant, who was the 2nd defendant at trial, was convicted on 24 August this year by a magistrate sitting at Tuen Mun Magistracy of theft contrary to section 9 of the Theft Ordinance, Cap.210, Laws of Hong Kong, and sentenced to 9 months’ imprisonment.  The 1st defendant has abandoned his appeal against conviction.

2.  This appellant now appeals against his conviction and sentence.

3.  The facts of the case appear to be straightforward.  The appellant and his co-accused at trial, the 1st defendant, were observed by PW2, who was a police officer, climbing over the gate of the Wo Hing Construction site in Yuen Long at about 1.25 am on 25 June 2007.  At 2.20 am the officer observed the same two men enter a container near the entrance to the site and at 5 am he saw them come out carrying some bags.  He saw the two men proceed over to the main gate, where they threw the bags over the gate.  The appellant climbed over the gate whilst the other defendant was seen to return to the container to take out other bags, which he threw over the gate to the appellant.  Finally, D1 also climbed over the gate.  PW2 informed his team members, who proceeded to arrest the appellant and the 1st defendant.

4.  PW1 was the supervisor of the construction site who confirmed that the items inside the bags belonged to t he company and they had all been locked inside the container.

5.  Both D1 and the appellant elected to give evidence.  Their evidence was that they were merely walking 2 metres apart from each other and were far away from the entrance of the site.  They said they were caught by the police for no reason and they had been framed by the police.

6.  The crucial issue for the determination of the learned magistrate in this case was the issue of the credibility of the prosecution witnesses, and particularly the credibility of PW2, the observation officer, on the one hand and the evidence of the two defendants on the other.

7.  In his statement of findings, the learned magistrate came to the conclusion that he was sure that all the prosecution witnesses were honest and reliable witnesses.  Conversely, he entirely rejected the evidence of the two defendants, saying that it lacked substance.  He did not accept that the police had framed them up, indicating that this was a totally absurd suggestion.

8.  In my judgment, the learned magistrate was perfectly entitled to come to the view that he did, as he it was who had the benefit of seeing and hearing the witnesses give evidence for himself.

9.  Having accepted the evidence of the prosecution witnesses, particularly that of PW2, and having rejected the account given by the two defendants, it was inevitable that the learned magistrate would conclude by convicting both defendants.

10.  The appeal against conviction is dismissed.

11.  Regarding sentence, the learned magistrate noted that the appellant had one previous conviction n 2006 for a similar offence of theft and was sentenced to one month imprisonment.  He rightly commented that the facts of the present case supported a scenario of burglary where a starting point of 2½ years’ imprisonment would be adopted.  As the appellant had been convicted of theft and not burglary, the learned magistrate adopted a much lower starting point of 9 months’ imprisonment. 

12.  In no sense can the sentence of 9 months’ imprisonment be said to be manifestly excessive or wrong in principle.  The appeal against sentence is similarly dismissed.