HKSAR v. CHAN PUI YU

HCMA 151/2024

[2024] HKCFI 3560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 151 OF 2024

(On appeal from WKCC 2689/2023)

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J U D G M E N T

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1.  The Appellant was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, to which he pleaded not guilty and was convicted after trial on 6 March 2024. On 27 March 2024, he was sentenced to CSO for 80 hours. On 8 April 2024, he filed a notice to seek to appeal against the conviction.

The Prosecution Case

2.  Very briefly, at about 10:15 p.m. on 5 June 2023, FUNG Tsz-fung (“PW1”) left his iPhone with a case (valued at $7,000) (the “Phone”) on a bench at Lai Kok Shopping Centre, 121 Tonkin Street, Kowloon. He was able to locate the Phone by using the “Find my iPhone” application subsequently and then reported the matter. At around midnight on the same day, PC 25434 (“PW2”) intercepted the Appellant at Lei Cheng Uk Playground in the same Cheung Sha Wan area and found the Appellant in possession of the Phone which was placed in his backpack.

3.  The above was not in dispute and the only issue at the trial was whether the Appellant was acting dishonestly and had the intention of permanently depriving the owner of the Phone.

The Defence Case

4.  The Appellant elected to give evidence but called no other witnesses.

5.  The evidence of the Appellant, in summary, was that on the date in question he and a friend went to the area outside Lai Kok Shopping Centre for a chat after dinner in Cheung Sha Wan area. When they were leaving that area to go elsewhere to continue their chat, the Appellant saw the Phone on a bench and he picked it up. He walked for a while and then put the Phone in his trousers pocket. He asked his friend where the nearest police station was and whether it would be too late to hand over the Phone to the police at that time. They then agreed to do so the next morning. It was about 10:30 pm when they then walked to Lee Cheng Uk Playground. The Appellant then put the Phone into his backpack and he intended to hand it over to the Wong Tai Sin police station when he would be on his way to work the next morning.

The Magistrate’s Findings

6.  It was not in dispute and the Magistrate accepted as truth that PW1 had left the Phone on a bench as aforesaid at about 10:15 pm and that the Appellant picked it up at about 10:30 pm.

7.  The Magistrate disbelieved the Appellant’s version for various reasons. First, he took the view that if the Appellant had time to walk to another location and chat with his friend until midnight, he certainly had time to find the nearest police station and hand over the Phone. Second, the Magistrate found it unreasonable for the Appellant not to realize that the nearest police station to Lai Kok Shopping Centre was merely 8-minutes’ walk away. Third, the Magistrate found it absurd for the Appellant to consider 10:30 pm to be too late to hand over the Phone to the police as it should be common knowledge that police stations were open 24 hours a day. Forth, the Magistrate observed that if there was any urgency for the Appellant to talk to his friend as he claimed or that he did not want the trouble of having to hand over the Phone to the police, he should not have picked up the Phone in the first place. Alternatively, after picking up the Phone, instead of going to the police station, the Appellant could have gone to the customer service and/or security counter of Lai Kok Shopping Centre and hand over the Phone to save time and trouble.

8.  For those reasons, the Magistrate did not accept the Appellant’s version as truth or possibly truth that the Appellant genuinely intended to hand over the Phone to the police after having picked it up.

Grounds of Appeal

9.  The Appellant relied on three grounds of appeal:-

(a)  Ground 1 – the Magistrate erred in law in finding beyond reasonable doubt that the Appellant was dishonest with an intention to permanently deprive the owner of the Phone.

(b)  Ground 2 – the Magistrate wrongly and unfairly rejected the Appellant’s evidence.

(c)  Ground 3 – in all the circumstances of the case, the conviction is unsafe and/or unsatisfactory.

10.  For Ground 1, the Appellant submitted that the Magistrate automatically found the Appellant guilty after rejecting his evidence and the Magistrate had failed to analyse the material facts before coming to his conclusion. It was submitted that the material facts were unable to support an irresistible and adverse inference of a guilty intention and that the Magistrate erred in law and failed to apply the Ghosh test. The Appellant also sought to rely on a case HKSAR v. Chang Wen Hou HCMA 63 of 2007 and submitted that it was of similar facts, where in that case that appellant found a lost wallet late at night and kept it until 3:30 p.m. the next day when stopped by police and that the appellate court held that there was insufficient evidence to prove beyond reasonable doubt the requisite intention to appropriate the wallet so as to permanently deprive the owner of it.

11.  For Ground 2, the Appellant submitted that it was reasonable and possibly true that the Appellant had prioritized his discussion of work-related matters with his friend, instead of handing over the Phone right away. The Appellant complained that the Magistrate presumed that there was only one particular way to deal with a lost item and had wrongly criticized the Appellant for not handing over the Phone to the nearest police station or the security counter of the shopping center. The Magistrate’s criticism which the Appellant should not have picked up the Phone if he had urgent matters to attend to was illogical and unfounded. It was submitted that the Appellant’s testimony that he had no intention to steal might be true.

12.  Ground 3 is a general ground contending that the conviction is unsafe and/or unsatisfactory.

The Respondent’s Reply

13.  For Ground 1 and Ground 3, the Respondent submitted that it was clear from the Magistrate’s findings that he had carefully and fully considered all the evidence before he came to his conclusion to convict. The scope of factual disputes at trial was relatively limited. It was not in dispute at the trial that the Appellant was found in possession of the Phone, which was put together with his other personal belongings in his backpack. The only issue was his intention.

14.  It was submitted that there was no basis to complain that the Magistrate failed to apply the Ghosh test and automatically jumped to the conclusion of guilt after rejecting the Appellant’s evidence. All the keys issues had been identified by the Magistrate and with appropriate and adequate findings made in his Statement of Findings. The Magistrate, having evaluated the evidence carefully, came to the proper conclusion that the Appellant was dishonest. It was submitted that the analysis and the findings of the Magistrate could not be faulted.

15.  For Ground 2, it was submitted that the Magistrate rejected the Appellant’s evidence after a detailed analysis and gave cogent reasons why he disbelieved the Appellant, which he was entitled to.

16.  The Respondent also provided two similar cases for my consideration:-

(a)  In HKSAR v SHIV Kumar HCMA 38 of 2021, which was also a “theft by finding” case, the defendant in that case was intercepted in about five hours after the victim had lost his belongings. The defendant told the police that he picked the items up at a bus stop about 10 minutes ago and intended to pass them to police. The appellate court agreed with the analysis made by the magistrate and upheld the conviction.

(b)  In HKASR v BUTT Ummar HCMA344 of 2016, which was another “theft by finding” case. The defendant picked up some bank cards an hour ago in a park close to where he was arrested. The appellate court ruled that the magistrate was entitled to draw the inference that the defendant intended to keep the cards for his own use and dismissed the appeal against conviction.

My Analysis and Decision

17.  According to the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki [2024] HKCFA 7, magistracy appeals are to be conducted by way of rehearing. The judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. An appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

18.  Here in this case, it was never in dispute that the Phone was a lost item belonging to PW1 who left it on a bench in a shopping center at about 10:15 pm, and that the Appellant had picked it up at about 10:30 pm and kept it in his backpack when intercepted by police in about an hour and a half later at around 12:00 am.

19.  The only issue both at the trial and at this appeal was and is a focused one, namely the mens rea of the Appellant, or to be more specific, whether the Appellant was dishonest to keep the Phone and had the intention of permanently depriving the owner of it.

20.  In other words, if the Appellant’s version, that he was only keeping the Phone temporarily as he needed to first talk to a friend about some job-related matters at that time and that he intended to hand it over to a police station the next day, was true or might be true, he should be found not guilty of the charge of theft.

21.  Leaving aside Ground 3 which was a general complaint about the conviction, I consider that Ground 1 and Ground 2 which centered on the complaint about Magistrate’s errors in rejecting the Appellant’s version could be dealt with together.

22.  I am of the view that previous cases of similar or comparable facts respectively relied upon by the parties are of limited assistance. This is case specific and each case of this nature is to be decided on its own facts.

23.  I have conducted this appeal by way of rehearing and carefully considered all the evidence. I agreed with those reasons of the Magistrate in rejecting the Appellant’s version and came to the same conclusion. In particular, I opine that it is most unreasonable, in the circumstances of this case, for the Appellant not to hand over the Phone to any security or staff counter in the shopping mall where he found the Phone or to a nearby police station, even accepting he had some job-related matters to discuss with his friend that night, but allegedly decided to keep it until the next day.

24.  Having rejected the Appellant’s version, I then look at all the evidence as summarized above which are not in dispute. With no acceptable evidence to weaken or cast doubt on the prosecution case, it remains intact as above described. I find the only reasonable inference from all the evidence and circumstances was that the Appellant intended to keep the Phone for himself, by that he had appropriated it with the intention of permanently depriving its owner of it. What he did must be dishonest by the ordinary standards of reasonable and honest people and he himself must have realized that what he was doing would be regarded as dishonest by those standards.

25.  All the grounds of appeal fail.

26.  I am sure that the Appellant’s guilt has been proven beyond reasonable doubt on the evidence. This appeal against conviction is dismissed and the conviction should stand.