HKSAR v. SIN LONG AND ANOTHER

HCMA495/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO.495 OF 1998

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J U D G M E N T

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1. The two Appellants were convicted by a Magistrate of theft and each was sentenced to 18 months' imprisonment. They now appeal against conviction and sentence.

2. This is a pick-pocket case. The learned Magistrate heard evidence from a woman police officer that these two Appellants, together with another woman, who was charged along with them as the 2nd Defendant in the Magistracy, were seen in Tsim Sha Tsui, apparently paying attention to passers-by and to their bags. The male, i.e. the 1st Defendant and the 1st Appellant before me, waved the two women into a shop. The two women went into the shop where the officer observed the 2nd Defendant, who is now the 2nd Appellant before me, attempting to open a rucksack worn by another female. She was unable to do so, but then the 2nd Defendant tried and succeeded in putting her hand into the rucksack and taking out some cash. At this point, the two women, i.e. the 2nd and 3rd Defendants, went out of the shop and the 1st Defendant followed them on the street to the point where they were apprehended by the police, and a pile of banknotes was found on the ground in front of the 2nd Defendant.

3. A second police officer gave similar evidence to that of the first police officer regarding the observation and apprehension of the Defendants and also regarding their actions.

4. The 1st Appellant, who had the benefit of legal advice, elected not to give evidence. He now tells me that the lawyer told him not to give evidence and that the Court said that he did not defend himself. The record shows that the Duty Lawyer, who represented the Defendants at trial, had explained his rights to the 1st Defendant, and the 1st Defendant elected not to give evidence. The 3rd Defendant, i.e. the 2nd Appellant, did give evidence before the Magistrate to the effect that she had never entered the shop.

5. The Magistrate, in considering the evidence, properly indicated that no adverse inference was to be drawn against the 1st Defendant for his failure to give evidence and she properly indicated that she bore in mind his clear record in assessing his propensity to commit the offence.

6. The learned Magistrate gave herself the proper direction as to character in respect of the 3rd Defendant, but did not accept her evidence. In effect, the Magistrate believed the evidence of the police officers and she did not believe the evidence of the 3rd Defendant. This was a matter for her for it was she who heard the evidence of the witnesses and was in a position to assess their credibility. There was evidence on which it was open to the Magistrate to draw the inference that the three Defendants were acting in concert. There was no evidence from the 1st Defendant and while the learned Magistrate properly reminded herself that this was not to be held against the 1st Defendant, nevertheless, there was no evidence before her which would contradict, or explain, or rebut the evidence which was given by the police officers in respect of the 1st Defendant.

7. There are no grounds on which this appeal against conviction can succeed.

8. As to the appeal against sentence, I note that the Magistrate has properly taken a starting point for sentence after trial for a pick-pocketing case of 15 months' imprisonment. This is the normal starting point following the authorities and the authority in particular of R v. Vy Van Kien & Another [1991] 1 HKLR 422 where the pick-pocket is acting alone. There is ample authority that the starting point may be higher where persons are acting in concert as pick-pockets. It was open to the learned Magistrate to impose a higher sentence because of that factor and this she has done. There is nothing to persuade me that the appeal against sentence should be allowed.

9. Accordingly, the appeals of both the Appellants against conviction and sentence are dismissed.