R. v. CHO SUM LAM and Others

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.675 OF 1996

--------------------

--------------------

-------------------------

J U D G M E N T

-------------------------

1. This is an appeal against conviction by three appellants who were convicted by a magistrate on 1st April 1996, the allegation being that on 10th January 1996, they attempted to steal a travelling bag at the China-Hong Kong Terminal. The 3rd appellant's notice of appeal also includes an appeal against his conviction for breaching an immigration condition of stay. To that offence however he had pleaded guilty, so it was rather difficult to understand the basis of that appeal. He has, however, today indicated that his appeal is against conviction for the attempted theft only. Accordingly, the appeal against conviction for the immigration offence is dismissed.

2. The prosecution's case depended on the evidence of a number of police officers who said that they observed the appellants in the departure hall in the early morning of the day in question. The evidence was that they were behaving suspiciously looking at passengers and in particular at their luggage. They eventually went to a queue outside Gate No.7 in the hall, and pointed to a man in front of a queue, who had a travel bag on the floor next to him. He was referred to at trial as the 4th man and it is convenient to refer to him in the same way in this appeal. The 2nd and 3rd appellants are said to have walked up to the man and engaged him in conversation. Whilst that happened, the 1st appellant went to the man's other side and lifted the bag. The 1st appellant was however noticed by the man and challenged, at which point all the appellants made off in a hurry, but only after the 1st appellant had replaced the bag on the ground. The police then intercepted the appellants.

3. The 2nd appellant was said to have in his possession cards belonging to another or others in the name of a Pakistani or Indian person, and the 3rd appellant had in his possession a two-way permit which had already expired. At the police station the appellants were interviewed through an interpreter. The voluntariness of the statements made by them, or some of them, was challenged. They were not admitted in the evidence, not because the magistrate accepted that the defendants had, as alleged, been maltreated, but because he found that the rules promulgated by the Secretary for Security for questioning suspects had been breached. He felt that in the circumstances the statements could not be considered as truly voluntarily. I pause only to remark that I find it is a little difficult to follow the reasoning of the magistrate in this regard, for the mere fact that the rules had been breached does not of itself mean that the statements were not voluntarily. Be that as it may, there has been an error in his approach in this regard, it has enured to the benefit of the appellants.

4. The 4th man was not stopped or spoken to by the police, and did not give evidence. This is the fact about which the defence quite understandably at trial made much capital. The prosecution evidence in this regard was that after the 1st appellant put down the bag, the 4th man picked it up and walked towards Gate No.7, and it was only after the three appellants were intercepted and after the contents of the 2nd appellant's bag was seen and noted by the exhibits officer that instructions were given to look for the 4th man. The attempt to find the 4th man was not successful. The officer who looked for him was not allowed to go through the gate, because beyond that point was an restricted area.

5. All three appellants gave evidence. The 1st appellant said that he had gone to the terminal to deliver keys to someone who had left them at his place earlier that day. There, purely by chance, he came across the 3rd appellant whom he happened to know. The 2nd and 3rd appellants were there to see off a friend who was going to China on business and the 3rd appellant wanted to see him because he was interested in acquiring clothes, and was expecting to be shown samples by the person they were to meet.

6. They said that they were arrested for no apparent reason and they were merely accused of looking for money and that they or some of them were assaulted at the terminal by the police. There was no 4th man whom any of them had approached, they say. The items allegedly stolen by the 2nd appellant were placed in his bag by the police. The 2nd appellant was acquitted on the third charge, namely, theft of a wallet and contents found in his bag, on the basis that the magistrate was not prepared to conclude on the requisite standard of proof that it had been shown that he had stolen them.

7. Today the appellants say to me that they were framed and that there were no witnesses to the alleged defence. I have read the transcript of evidence as well as the magistrate's Reasons for Verdict. The issue is straightforward. The magistrate believed the evidence of the police officers and drew the inference from the conduct of the appellants as described by the officers that all three were engaged in an attempt to steal the 4th man's case. That was, it seems to me, the only reasonable inference to draw once the magistrate believed the evidence of the police officers. The magistrate was alert to the fact that no evidence was adduced from the 4th man and that the 4th man had not been stopped by the police. He placed no significance on that ground. Some might have done, but the magistrate had the singular advantage of seeing and assessing the credibility of the officers whose evidence was all important in the case. It is important that the appellants understand that this is not a re-trial. I have not had the advantage as has the magistrate of seeing and hearing the witnesses. There are in the circumstances no valid grounds for disturbing the convictions and the appeal against conviction in respect of each appellant is accordingly dismissed.

8. Two of the appellants, namely the 2nd and 3rd appellants expressed grievance about the sentences of 18 months imprisonment imposed in respect of this offence. The 2nd appellant that says his family are in dire straits in mainland China because of the flooding and he has produced a recent telex. I am very sceptical about claims of this kind. This court is inundated with tales of family illness and tragedy every time someone from the Mainland seeks a reduction in sentence. Those who come here and commit crimes take the risk that they will be caught and that families in need will be abandoned during periods of imprisonment imposed for the crimes they have committed. However, on the face of the case, 18 months imprisonment for this attempted theft seems high. I have however not had the advantage of authorities cited to me as to the appropriate tariff nor do I have the advantage of reasons given by the magistrate for the sentences imposed. That is not surprising given that the appeals when lodged were appeals against conviction only.

9. Given that the appellants have not had the advantage of legal representation or advice in relation to appeal against the sentence, I shall give leave to the 2nd and 3rd appellants to appeal out of time against their sentences, on condition that they lodge their appeal against sentence within 7 days. The magistrate will be requested to give his reasons for sentence. The appeal against sentence will be reserved to myself as I am seized of the facts of the case and the appeal will be heard on a date to be fixed. Neither appellant should assume that their appeal against sentence will be successful. I have scant information before me to decide whether the sentence was appropriate or not, and I have given leave merely for the reasons I have indicated.

10. That leaves the question of the 1st appellant. He did not make any complaint to me about sentence and I have before me his criminal record. I notice from it that he has a long string of convictions for theft. It seems to me that his position might be different. But he too now asks for leave to appeal against sentence. Although I think his position is virtually hopeless, given that I have given leave to the other two appellants to appeal against sentence, I shall give him leave on the same condition, that he lodges his appeal against sentence within 7 days but I emphasise that the prospect of success at the moment, appears to me to be dim indeed.