HKSAR v. KWONG MOON WAH

HCMA26/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 26 OF 2006

(ON APPEAL FROM KCCC 5391 OF 2005)

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J U D G M E N T

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1. The Appellant appeals his conviction for theft.  It was a pickpocketing case.  Someone bumped into a lady, who was PW1 in the proceedings below, at a busy junction in Sham Shui Po.  As she was bumped into by this man, she felt that her mobile phone, which was in her right trouser pocket, was being taken away.  She grabbed the man and held on to him.  That man was this Appellant.  She saw her phone in his hand.  It was a distinctive one, being a white phone with a pink string hanging from it.  She was sure that she saw it in the Defendant’s hand.  She was sure that it was passed to someone else.  She thought it was passed to a lady who was standing by in this very crowded situation, who was wearing a purple top.  The victim’s companion stopped that lady but the phone was not found upon her.  Thus there was a very strong prima facie case against the Appellant, although not, of course, against the lady in the purple top who was, in fact, released. 

2. The Appellant was represented.  Despite there being a very strong prima facie case against him, he elected not to give evidence.  The evidence was all thus one way.  If the magistrate was not to convict, it would have meant that the evidence of PW1 contained the seeds of its own destruction.  It clearly did not do so.  The magistrate was quite entitled to rely upon what she swore to the court was true.  No one suggested that she was dishonestly making this up.  It was said that she was mistaken.  The magistrate judged, and I judge, that there was no sensible room for mistake here.  She either saw her phone in the man’s hand or she did not. 

3. It is thus that I am sure, on the material in front of me, that this conviction was a correct one.  I confirm it and dismiss the appeal.