HKSAR v. TONG WAI HUNG

HCMA418/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.418 OF 2002

(ON APPEAL FROM ESCC 312 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The case is connected factually to the matters dealt with by me today in my earlier judgment in HCMA 367 of 2002.

2. In the present case, the appellant was convicted of theft of a watch and other personal items, totaling some $44,000. He advances general grounds of appeal as to the conviction being against the weight of the evidence and, further, more specifically complains about the magistrate's finding that the victim of the theft (PW1) was a credible witness.

3. The facts of the case as found by the magistrate were that the appellant had met PW1 at a bar in Central and had later gone back to PW1's home with him. PW1 had gone to sleep that night while the appellant was still present in the premises. When PW1 woke up in the morning, he discovered the appellant had gone and had taken various personal items of PW1 with him including PW1's "Raymond Weil" watch.

4. Subsequently, PW1 made a report to the police. They went to his premises and found and lifted some fingerprints there. About a month later, the appellant was arrested in respect of the offence the subject of HCMA 367 of 2002.

5. When the appellant was arrested in respect of that matter, he was found to be wearing a "Raymond Weil" watch which was subsequently shown to and identified by PW1 in the present case.

6. The appellant in a cautioned statement, which was admitted into evidence by the magistrate following a voir dire had denied knowing PW1 or ever having been to PW1's address.

7. Fingerprints of the appellant had been found during the police investigation on a glass and a beer can in PW1's premises. The finding of those fingerprints supported PW1's evidence that he and the appellant knew each other, and had returned to PW1's premises after meeting on the night of the alleged offence.

8. In this case, the fundamental issue was the credibility of the prosecution witnesses and the appellant who also gave evidence. In this regard, the magistrate said :

" I carefully considered all the evidence. I was satisfied so I was sure the prosecution witnesses were witnesses of truth. I had no hesitation in rejecting the appellant's evidence. I reminded myself the rejection of the defence evidence was not determinative of the issues in the case. The appellant had to prove nothing. A case in which a defendant gives evidence and is not believed is no different from one in which he gives no evidence at all. In either case the burden is on the prosecution to prove the defendant's guilt beyond reasonable doubt."

9. Following that, the magistrate, at the end of the day, said this :

" Having carefully considered all the evidence I found I was satisfied so I was sure the only inference to draw was the appellant stole the property, as particularised in the charge, from PW1 whilst at his home. In reaching my verdict I carefully considered the submissions made by the appellant during the course of this evidence. Nothing said by the appellant caused me to doubt the findings I made."

10. The conclusions arrived at by the magistrate were open to him on the evidence. Particularly his finding that PW1 was a credible witness was supported by the finding of the appellant's fingerprints in PW1's flat. There is no merit in the appellant's general ground of appeal.

11. The appellant's specific ground of appeal advanced before me to the effect the magistrate was wrong to have accepted PW1 as a credible witness was based on the evidence of PW1 to the effect that he was unable to produce receipts for the "Raymond Weil" watch. In evidence, however, PW1 had given a reason for this. He said he purchased the watch in 1997 outside of Hong Kong and had not brought the receipt for it to Hong Kong. The magistrate referred to this evidence in his Statement of Findings. It was obviously something the magistrate had considered. No doubt he had concluded that it was a trivial matter which did not affect PW1's credibility. He was entitled to so decide. There is no merit in this specific complaint of the appellant.

12. Finally, as I have said, the facts of this appeal have some overlap with the facts in HCMA 367 of 2002, in respect of which I have allowed the appellant's appeal and ordered a re-trial. I should point out that the reasons for my allowing the appeal against conviction in HCMA 367 of 2002 are in no way relevant to, or impinge upon, the present appeal.

13. So far as the appellant's appeal against sentence is concerned, he complains generally that his sentence of nine months' imprisonment is too severe and that, in any event, it should have been made concurrent to the sentence imposed in respect of the offence the subject of HCMA 367 of 2002. As that sentence has now been set aside, there is no need for me to deal with this latter basis of his appeal.

14. So far as the severity of the sentence is concerned, it seems to me that nine months' imprisonment for what the magistrate justifiably regarded as a calculated and cynical theft of property, valued at $44,000, cannot in any sense be described as severe.

15. The appeal against sentence is dismissed.