HKSAR v. CHAN SUI KI

HCMA1246/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1246 OF 2003

(ON APPEAL FROM FLCC 1862 OF 2003)

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J U D G M E N T

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1. The appellant was convicted on 6 November 2003 of attempted theft and was sentenced on the same day to 20 months' imprisonment by Madam H.F. Woo. He now appeals that conviction.

2. The events which gave rise to this prosecution took place on 18 March 2003 outside the Sheung Shui KCR Station. A policeman who was PW1 testified that he saw three suspicious males including the appellant standing at the bus stop of the Airport bus at different positions and looking around. He said these three men were watching the luggage of tourists who were waiting for buses. He and another police officer who was PW2 stood at separate positions and kept them under surveillance.

3. PW1 testified that he saw a tourist pulling a piece of luggage with his right hand and carrying a black bag which was hanging over his shoulder. He said the three men walked near that tourist, one to his left, one to his right with the appellant behind him. They looked at the tourist's luggage and black bag and looked around. When the Airport bus arrived, the passengers in the queue started to board the bus. PW1 said that two of the men then walked closer to the tourist with their bodies pressed against him. He said he moved closer. When he was about three metres away, he saw the bag of the tourist squeezed to his back and the appellant touch the zip of the bag with his left hand. He said at that point the tourist suddenly pressed his bag with his left hand and the appellant withdrew his hand and turned around.

4. PW1 saw the appellant walking towards him and said "Police, stop!". He said the appellant ignored him and continued to walk quickly. He again asked him to stop and, again, there was no reaction. He then approached the appellant and stopped him physically, producing his warrant card and telling him he was suspected of pick-pocketing. The second police officer arrived and after the appellant produced his identity card, the second policeman left.

5. The appellant gave an explanation as to why he was there. He said that he was going to China so he went to Sheung Shui by train. He was walking past the bus stop, but did not stop at it. He denied any involvement in any theft. PW1 arrested him for loitering and the appellant denied that offence.

6. PW2, the other police officer, testified that he also saw three men standing near the bus stop looking at the luggage of passengers. He watched the three men. He saw the Airport bus arrive and the passengers start to board. He said when he was about three metres from the bus stop, he saw a tourist carrying luggage with his right hand with a bag hanging near his left waist. He said the appellant was standing immediately behind the tourist with the other two males on the left and right of the tourist. He said the appellant suddenly stretched out his hand and pressed it against the top of the black bag carried by the tourist. He testified the tourist then tapped his bag with his left hand and turned his head slightly to the left. The appellant, he said, withdrew his hand and the three men turned and left in different directions. It was his evidence that he endeavoured to follow the appellant, and it was only when he saw that PW1 had stopped the appellant that he returned to the bus stop to look for the tourist. The bus had already set off. The other two men had disappeared from the scene.

7. The first ground of appeal is that the magistrate was wrong to disregard the contents of the "brief facts" drawn up in respect of this matter.

8. Brief facts are drawn up prior to the prosecution of the case by a member of the investigating team in the police force and is tendered to the magistrate by way of an opening to the prosecution case. It appears that in this case, the brief facts included a reference to the hand of the appellant going into the bag of the tourist. This, of course, was contrary to the evidence given by either PW1 or PW2. The brief facts were not produced nor was anyone associated with their making called to give evidence.

9. PW1 was asked if he could explain why that passage was in the brief facts and his answer was that the brief facts had been prepared by somebody in the CID and that he had never told anybody that he saw the appellant's hand going into the bag. Mr Mitchell-Heggs, for the appellant, argues that the magistrate placed insufficient weight upon the difference between what was contained in the brief facts and the evidence given by PW1 and PW2. The magistrate in her reasons properly found that the brief facts were not evidence. If they do amount to an opening and she accepted that they did, the set of brief facts cannot form part of the body of evidence. The document itself was never produced and so did not come into evidence by that route. It cannot be said to be a previous inconsistent statement by either of PW1 or PW2 as it was made by neither and adopted by neither. Not infrequently, in cases where there is a formal opening of the case of the prosecution, the account by the prosecutor of what he hopes to prove is not matched by the evidence as it finally emerges. The court is then left in the position where it considers the evidence of the witnesses who gave evidence in court and what has been said in the opening plays no part in the decision made by the jury. In this case, if the brief facts are to be considered an opening it is clear that the evidence falls short of that opening. This is to the benefit of the appellant rather than again his interest.

10. Mr Mitchell-Heggs has speculated that there was some ulterior motive on the part of the police to try and make the case against the appellant seem graver than it really was by the inclusion of that error in the brief facts. There is no evidence for this suggestion and it remains mere speculation. The magistrate dealt with the issue of brief facts in a perfectly proper manner. She was alive to the points made by Mr Mitchell-Heggs and ruled that since the brief facts did not form any part of the evidence she was required to consider to make her findings she could not base her decision upon it. There is nothing in this ground of appeal.

11. The second ground of appeal relates to an inconsistency between the evidence of PW1 and his witness statement.

12. In his evidence-in-chief, PW1 said this :

"Q.	Now, according to what you saw, could you tell there was any zipper on the bag of the tourist in question?
A.	Yes.
Q.	According to what you saw, did the defendant do -- did you see any action the defendant had done with zipper of the bag of the tourist in question?
A.	He simply touch it with his left hand.
Q.	'Touch' where?
A.	The head of the zipper.
Q.	'The head of the zipper' of what object?
A.	The head of the zipper of the bag carried by the tourist."

13. In cross-examination, the contents of the statement made by him after the arrested of the appellant was put to him. The passage is as follows :

"Q.	Could you start again? Start with the sentence, 'I saw AP reach out his left hand.' Can you read that sentence out, please?
A.	'I saw the defendant stretched out his left hand and touched the bag the tourist carried, intending to unzip t he zipper.'"

14. The difference between the two versions being in his evidence he said the appellant touched the zip and in his statement that he touched the bag and also imputing an intention in him to unzip the zipper

15. This inconsistency was dealt with by the magistrate in her findings, she said this :

"PW1 agreed that he had forgotten to put down specifically which part of the black bag the Defendant was seen touching in his witness statement made on the day of the offence. He said he had actually seen the Defendant touching the zip of this bag, for him to form the view that the Defendant 'intended to unzip the zip'. Had the Defendant not touched the zip, he would not have written 'intended to unzip the zip' in his witness statement.

Having fully heard the evidence in this case I accepted PW1's explanation and believed that it was a genuine oversight on his part when writing his witness statement."

16. The magistrate directed her mind to the issue. She considered the reasons given by the witness for the difference then came to a reasoned conclusion that it was a genuine oversight on the part of the witness when he wrote his statement. There is nothing in this ground of appeal.

17. The last ground of appeal is the criticism of the conduct of PW2 in allowing a potential witness to depart. It was the contention of the appellant that the witness did not exist. It was Mr Mitchell-Heggs' argument that he ought to have been able to detain the tourist who was the subject of this matter and that his actions as testified to by him of going to the scene of the arrest before attempting to locate and speak to the tourist was inappropriate conduct. It was, in the words of Mr Mitchell-Heggs in his grounds of appeal :

"What PW2 chose to do and his subsequent attempts to excuse himself put the whole case against the Appellant under grave suspicion of a conspiracy between PW1 and PW2 to put a little icing on the cake."

18. The magistrate dealt with the point. She said this :

"PW2 considered this tourist to be a likely witness but he decided to adopt his usual practice of intercepting the suspected person whose earlier action would evoke police enquiry. He therefore proceeded to follow the Defendant and intended to investigate him first.

When he saw PW1 managed to intercept the Defendant he then left to look for the tourist and the other 2 suspected persons.

The Defendant, the tourist and the other 2 suspected persons were leaving the crime scene at the same time in different direction. The person whom these 2 police officers could not afford to lose in this case would be the Defendant. There was nothing improper for PW2 to see that the Defendant was intercepted first before he went on to look for other suspected persons and the tourist."

All the matters argued by Mr Mitchell-Heggs before me on this ground of appeal were argued before the magistrate. I am satisfied that she had them fully in mind when she wrote the passage that I have referred to above.

19. I am satisfied that this case has received proper consideration and that the magistrate arrived at a proper conclusion. The appeal against conviction is dismissed.