HKSAR v. DHILLON, RAJINDER SINGH

HCMA 167/2026

[2026] HKCFI 5325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 167 OF 2026

(ON APPEAL FROM WKCC 5851/2025)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial of one count of theft[1]. He was sentenced to 12 months’ imprisonment.

2.  The appellant now appeals against conviction.  At the appeal hearing, I dismissed the appellant’s appeal and the reasons are as follows.

Prosecution case

3.  The prosecution called three witnesses to give evidence.  Exhibits including CCTV footage (Exhibit P1), screen captures (Exhibit P1A), a photo album (Exhibit P2) and the appellant’s recognizance form (Exhibit P4) were produced. 

4.  PW1 was the driver of taxi TB5062.  At about 1:00 a.m. on 25 November 2025, he parked the taxi outside 285 Castle Peak Road while he went to obtain food.  He accidentally left the driver’s window open.  When he returned at about 2:00 a.m., he discovered that a sling bag (valued at around $1,500) containing cash of $500, which was placed on the front passenger-side floor, and approximately $1,500 daily earnings kept between the front driver and passenger seats under a black anti-slip mat were missing.  He reported the matter to the police.  

5.  PW2 was a forensic officer.  He lifted two fingerprints from the exterior of the taxi’s driver-side door.  Those fingerprints belonged to the appellant.  PW2 explained that he did not recover prints from the interior of the taxi because the rough plastic surfaces were unsuitable and visual inspection revealed no viable areas or suspected fingerprints.  He also explained that the absence of liftable fingerprints did not prove that a surface had not been touched.

6.  PW3 arrested the appellant on 28 November 2025 because his face resembled the suspect shown in the CCTV footage.  PW3 claimed that he had watched about one hour of CCTV footage in fast-forward mode and had seen only the appellant approach the taxi during the relevant period.  However, the full one-hour footage was not produced at trial.  Only the approximately three-minute extract Exhibit P1 was produced.

7.  Exhibit P1 showed a man approaching the taxi at about 1:45 a.m., looking inside, attempting to open the driver’s door, leaning through the open driver’s window, and later unlocking and opening the driver’s door.  He entered the taxi empty-handed, remained inside for approximately two minutes, and made movements including bending towards the front passenger-seat area.  On leaving the taxi, he appeared to be holding banknotes, which he moved between his hands, appeared to count, and eventually placed in his trouser pocket.

Defence case

8.  The appellant did not testify and did not call any defence witness.

9.  From the defence cross-examination and submissions, two defences were advanced. First, the appellant disputed that he was the person shown in the CCTV footage.  Second, the defence submitted that, even if the appellant was the man shown in the CCTV footage, the prosecution had not proved the act of theft.  As only about three minutes of CCTV footage had been produced from the approximately one-hour period during which the taxi was unattended, the defence suggested that, during the remaining 57 minutes for which no CCTV footage was produced, another person might have approached the taxi and taken the missing property.

Magistrate’s findings

10.  The magistrate found PW1 and PW2 honest, credible, and reliable, and accepted their evidence in full.  She accepted that PW1’s properties had gone missing from the taxi and that the appellant’s fingerprints were found on the exterior of the driver’s door[2].  By contrast, she found PW3 credible but not reliable because important details were missing concerning when and in what circumstances he viewed the full one-hour CCTV recording. The magistrate did not rely on PW3’s identification evidence[3].  Instead, the magistrate made her own identification by examining the CCTV footage (Exhibit P1), the screen captures (Exhibit P1A), the photograph on the appellant’s recognizance form (Exhibit P4), and the appellant’s appearance during the trial.  Having directed herself on the special need for caution when relying on identification evidence, the magistrate was sure that the man shown in Exhibit P1 was the appellant.  The appellant’s fingerprints on the taxi door further supported that identification[4].

11.  On the act of theft, the magistrate found that Exhibit P1 clearly showed the appellant entering the taxi empty-handed without permission, remaining inside for about two minutes, and leaving with what clearly appeared to be banknotes, which he then put into his pocket.  She rejected as unrealistic and speculative the suggestion that another person might have stolen the properties during the unproduced 57 minutes[5].

12.  The magistrate was not satisfied that every item listed in the amended charge had necessarily been taken by the appellant.  However, she was sure that he had taken at least some banknotes belonging to PW1.  She held that it was sufficient for a theft conviction if any one of the several alleged items was proved to have been stolen[6].

13.  On mens rea, the magistrate found that entering another person’s unattended vehicle without permission and taking banknotes was dishonest.  The appellant’s act of carrying the banknotes away and placing them in his pocket supported the only irresistible inference that he intended to keep them and permanently deprive PW1 of them.  She therefore found both the actus reus and mens rea of theft proved beyond reasonable doubt and convicted the Appellant[7].

Grounds of appeal

14.  In the notice of appeal, the appellant relied on the general grounds.  At the appeal hearing, the appellant stated that the magistrate erred in finding him as the person depicted in the CCTV footage, that his fingerprints were put there by somebody, and he was framed up.

Consideration

15.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power.  The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict.  It was recognized that 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 facts 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.

16.  As the respondent had pointed out, the authenticity of the CCTV footage and the fact that PW1’s properties were stolen were not in dispute, the main issues in this case were identification and whether the evidence proved the appellant stole the missing properties.

17.  On rehearing, I have the opportunity to view the CCTV footage repeatedly.  I agree with the magistrate’s observation about what the CCTV footage showed as set out in detail in paragraph 40 of the Statement of Findings.  Having compared the appearance of the man shown in the CCTV footage with the screen captures, the photograph of the appellant on the recognizance form, I come to the same conclusion as the magistrate that the man shown in the CCTV footage is the appellant.  The fact that the appellant’s fingerprints were found on the exterior of the taxi door on the driver’s side supports this identification.  As the appellant did not give evidence, his submissions at appeal hearing that he was framed up and someone put his fingerprints there were not supported by any evidence.

18.  Further, as clearly shown in the CCTV, the appellant entered the taxi empty-handed and left approximately two minutes later with what appeared to be banknotes.  In the absence of evidence that another person approached the taxi, I agree that the magistrate was entitled to draw the irresistible inference that the appellant took at least part of PW1’s missing properties.  She was clearly entitled to find that what the appellant did was dishonest and he had the intention to permanently deprive PW1 of the property.  Finally, the fact that the appellant stole at least one of the items alleged was sufficient to sustain the theft conviction.

19.  In view of the above, on rehearing, I am satisfied that the prosecution has proved beyond reasonable doubt all the elements of the offence.  The appellant’s appeal against conviction is dismissed.