THE QUEEN v. KWAN KAI WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1632 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted by Mr K.J. Townsley on two charges of attempted theft (pickpocket). He was sentenced to nine months' imprisonment on each charge to be served concurrently. He lodged appeals.against conviction and sentence but, before me, has abandoned the appeal against sentence.

2. The brief facts were that on the 19th August 1990, the appellant was seen by a police officer, PW3, to put his hand into the shoulder bag being carried by PW2 a female visitor from Taiwan. He was disturbed and withdrew his hand. He was then seen to approach a male, PW1, and attempted to lift the wallet out of PW1's trousers pocket. He was unable todo so and was subsequently stopped and arrested by PW3 .

3. He was brought before the court on the 20th August 1990 and as the magistrate was advised that PW2 was returning to Taiwan, the trial was fixed for the next day, the 21st August. At the trial, PW1 gave evidence that having felt a slight feeling that his wallet was being pulled, and that before the police officers had spoken to him he had been bumped into.

4. Following PW1's evidence-in-chief, the appellant asked for an adjournment to seek legal representation. The magistrate was then clearly faced with a dilemma as PW2 was returning to Taiwan and from the statement of findings, it seems that PW1, a seaman, was going back to sea. The magistrate therefore decided to proceed with the trial. It is on the record that the appellant protested that he did not know the law, nor cross-examination.

5. The magistrate explained at length the nature of cross-examination and then elected to continue with the trial. The appellant proceeded to cross-examine PW1 who agreed in cross-examination that he did not know who it was that had bumped into him. All that the could' say was that after he was bumped into by somebody, he felt that a small part of his wallet was protruding out of his pocket.

6. PW2's evidence was that she was shopping, carrying a brown shoulderr bag. She knew nothing of any attempted theft until stopped by the police officer at which time she checked the bag which was untied. It was her evidence that she just purchased some ivory handicraft and that was the reason for the cord of the bag being untied. The appellant then proceeded to ask some questions of PW2.

7. The magistrate then adjourned the case to enable the appellant to get legal representation and when the casewasresumed, he was represented by Miss Chih who also appears on the appeal.

8. PW3 gave evidence relating to the two incidents and of the taking of a cautioned statement from the appellant in which he is said to have recorded the words "Ah Sir, recently I am without any job, unemployed. I have no alternative." After holding a voire dire, the magistrate ruled the statement admissible.

9. The appellant gave evidence on the general issue and it was his defence that he had been going about his business on that day and had been grabbed by PW3 and that he had not done anything unlawful.

10. The first ground of appeal is that the appellant was denied justice by the magistrate's refusal to adjourn the , hearing so as to allow the appellant to seek proper legal representation. In R. v, Yu Lap-wai [1987] HKLR 46, Bewley J. was faced with a somewhat similar position to the matter in this appeal. The Crown in that case alleged the accused had stolen a wallet from a Japanese tourist and at the end of the victim's evidence, the accused asked for an adjournment as he was feeling unwell and wanted to see counsel. The magistrate continued the hearing, the tourist was not cross-examined and he then adjourned the matter to enable the accused to seek legal epresentation. When the hearing resumed, he was represented by a solicitor, but when the magistrate refused an application to recall the tourist, the solicitor withdrew. The case continued with the accusedunrepresented, he did not cross-examine the principal Crown witness, he did not give evidence nor did he call witnesses. The learned judge said at p.48 :-

"In my judgment, the defendant in Hong Kong. also has the right to be represented and to an adjournment if  it is necessary, to secure the attendance of counsel. Nevertheless, I agree with Mr Kelly that the overriding consideration is whether justice has beendone to the unrepresented accused. Was there prejudice in this case? Had the prosecution case depended on the evidence of the two Japanese touristI think they might have been. However the evidence of Mr to was really more crucial."

 

11. He went on to find that apart from the evidence of the loss of the wallet, the magistrate could have convicted on Mr Lo's evidence alone.

12. In this case PW1 and PW2 did not give any evidence of an attempted theft by the appellant. PW2's evidence was that she knew nothing of the incident. PW1's evidence was limited a  to a feeling of someone touching or bumping him.

13. If anything, the evidence which came from these witnesses was helpful to the appellant. PW1's evidence of being bumped was not something that PW3 said he observed,although it was his evidence that he had PW1 under observation while watching the appellant. PW2 gave evidence that her bag had been tied by a cord and that this was unsecured as she just paid for some ivory handicraft. So this was evidence which was far from prejudicial and which could, if it had been believed, been of assistance to him.

14. I do not accept that the appellant's case could have been further advanced by cross-examination from a legal representative. He was represented when the crucial witness for the prosecution, PW3, gave his evidence and when all other aspects of the trial were considered. I am not convinced that he was prejudiced by the magistrate's refusal to adjourn on the 21st August 1990.

15. The other grounds of appeal relate to the magistrate's admission into evidence of the statement given under caution and to some of his findings. The magistrate dealt with the apparent discrepancies in the evidence of PW3, particularly inrelation to the contents of his witness statement when compared with the evidence he gave in court. He also dealt with the discrepancies between the evidence of PW1 and PW2 on the one hand and PW3 on the other. He was satisfied after reconciling these differences that PW3 was a witness upon whom he could rely and he specifically found that PW2, the Taiwanese lady, was a witness whose recollection of the events was not something that he could rely upon. He was satisfied that the allegations made by the appellant as to the behaviour of the police officers recording the statement were groundless.

16. When looking at the statement of findings and the evidence, I am satisfied that he was entitled to draw the inferences that he did, and in particular he was justified in drawing the inference that he did from the cautioned statement.

17. The case really stood or fell on the magistrate's assessment of PW3. He saw him and he saw the other witnesses. He was satisfied, as I have said, that he was a witness as to the truth. He considered the evidence of the appellant as to whether that raised any doubts in his mind as to the quality of the prosecution evidence, and he was satisfied that it did not in that he didn't accept that appellant as a witness of truth.

18. I do not consider from the evidence, the statement of findings and the submissions, that there is anything which would justify me in interfering with the verdicts. The appeal is dismissed.