HKSAR v. THAPA PREMKALA

HCMA 188/2021

[2021] HKCFI 3673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 188 OF 2021

(ON APPEAL FROM KCCC 2623 OF 2020)

__________________________

__________________________

_________________

JUDGMENT

_________________

1.  The Appellant was convicted after trial of the charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210, together with the 1^st Defendant on 31 March 2021. She now appeals against her conviction.

2.  The facts are not complicated.  She is accused of, acting together with the 1^st Defendant, stealing a mobile telephone of a sleeping male on the side of Nathan Road near the Tsim Sha Tsui MTR Station.  The 1^st Defendant in the case had pleaded guilty to the charge.

3.  The facts as given by the Prosecution Witnesses were actually quite simple and were largely unchallenged.  PW1 testified that he was on patrol in plain clothes, together with PW2.  He saw the 1^st Defendant and the Appellant go near to a sleeping male and left him by walking away and then walked back again to where the sleeping male was.  On this occasion, the 1^st Defendant then took the mobile telephone, the subject matter of the charge, from the sleeping male.

4.  It is asserted by the prosecution that the Appellant was acting as a lookout.  After the mobile telephone was taken, they then walked together northwards and then they were intercepted.       

5.  PW2 gave similar evidence, and PW3 was tendered for cross-examination.  He agreed that the 1^st Defendant had told him that the Appellant did not know of the stealing of the mobile telephone, and that she was not related to the case.

6.  The Appellant elected not to give evidence but called the 1^st Defendant as a Defence Witness. His evidence was that he went to the railing alone when he stole the mobile telephone while the Appellant had continued to walk northwards. 

7.  In his assessment of the evidence, the learned Deputy Magistrate in his Statement of Findings said that he drew no adverse inference from the Defendant not giving evidence, he also reminded himself that she has a clear record.  The evidence of PW1 and PW2 were not challenged as to their observations. In the end, he found that both witnesses were credible and reliable witnesses. 

8.  As for the 1^st Defendant, the learned Deputy Magistrate went on to assess his evidence, and ultimately found that there were very obvious discrepancies between his evidence and the unchallenged prosecution evidence, and ultimately did not find him a credible witness.  So his evidence was rejected.

9.  In his Statement of Findings, the learned Deputy Magistrate from paragraph 17 onwards, concluded that the 1^st Defendant and the Appellant were seen stopping near where the sleeping male was, and then both of them walked away, and then they returned to where the sleeping male was, and that was when the 1^st Defendant reached over and took out the sleeping male’s mobile telephone.  Then both of them walked away.    

10.  The learned Deputy Magistrate in his assessment of the evidence at paragraphs 23 to 25, stated that both of them had left the sleeping male together, walked some distance away, and then returned to where the sleeping male was.  There was no dispute that the Appellant was standing to the left rear of the 1^st Defendant.  After the 1^st Defendant took the mobile telephone and when he was checking the screen, the Appellant was still near to the 1^st Defendant, so the learned Deputy Magistrate considered that the only irresistible inference was that the Appellant was taking on the role as a lookout for the 1^st Defendant.  So at the end of the day, he then convicted the Appellant.        

11.  The appeal was conducted by Mr Allan who also represented the Appellant in the Court below.  The mainly ground of appeal was that the learned Deputy Magistrate had forgotten to remind himself that the Appellant had a clear record.  It was only when he was before the learned Deputy Magistrate at the time when he asked for bail that he had told the learned Deputy Magistrate that he had not reminded himself of the clear record of the Appellant which would be a ground of appeal. 

12.  However, as Ms Chan had pointed out in her submissions, although the learned Deputy Magistrate did not mention in his oral reasons that the Appellant had a clear record, he clearly knew that she did because he was reminded of that when Mr Allan made his final submissions.  And at the time when the learned Deputy Magistrate was told by Mr Allan that he had forgotten to remind himself of the clear record of the Appellant, he said:[1]

“I think, Defendant, in my view, any counsel with reasonable experience would know that the verbal reason for verdict is not a full verdict. It is very different from a written verdict. Those -- most of the standard -- sorry, most of the most important reason for the verdict should be stated therein in the verbal verdict and there has been no misunderstanding in this court that right from the beginning of the trial that you had a clear record.”

13.  As the Court of Appeal had said many times that oral reasons are not be full reasons for verdict but only mention salient points which the learned Magistrate had considered on the facts as to why there was a conviction in this case.

14.  It was also pointed out by Ms Chan that the admitted facts at Exhibit P1 had stated clearly that the Defendant had a clear record in paragraph 7.

15.  So with all these, it would have been unusual for the learned Deputy Magistrate hearing such a simple case to have forgotten about the Appellant’s clear record when assessing the evidence in this case.

16.  I also wish to point out that the Appellant chose not to give evidence and this was her right.  Mr Allan tried to argue that while she may have been with the 1^st Defendant, but maybe she was shocked by his action and horrified, that was pure speculation. There was no evidence from the Appellant as to how she was feeling.  

17.  Mr Allan pointed out that the Appellant had from the beginning when she was arrested, stated that it had nothing to do with her, and the 1^st Defendant also said that it had nothing to do with her, both when he was arrested and when he gave evidence.  However, the learned Deputy Magistrate, giving full reasons in his Statement of Findings, found the 1^st Defendant’s evidence to be unworthy of belief.      

18.  On an appeal, of course it can be treated as a rehearing on the evidence that was found by the learned Deputy Magistrate. Clearly the learned Deputy Magistrate drew the only irresistible inference based on the unchallenged evidence before him of the two PWs. 

19.  I cannot find any error either on the facts or in law made by the learned Deputy Magistrate as to his findings. 

20.  Therefore, I do not find there is any ground to disturb the findings of the learned Deputy Magistrate.  So the appeal is dismissed.