HKSAR v. FUNG WONG AND ANOTHER

HCMA 167/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 167 OF 2004

(ON APPEAL FROM KCCC 17237/2003)

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J U D G M E N T

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1. The Appellants, each of whom was represented by Counsel at trial, were convicted after trial by a Magistrate on a joint charge of theft. The evidence he heard came from two police officers who were conducting an operation against pickpockets.

2. At trial each Appellant elected not to testify or to call any witnesses as is his right.

3. After considering submissions relating to the evidence, what were optimistically described as "suspicious features" of the events and criticisms of the two prosecution witnesses, the Magistrate came to the conclusion that the witnesses were honest and reliable and accepted that events occurred in the manner they described. The Magistrate took into account all of the matters raised by Counsel. He saw and heard the witnesses and was in the best position to make that assessment.

4. He concluded that the facts he found proved established the elements of the offence and that it was an offence committed jointly by the Accused. On the evidence he could not have found otherwise. The only inference he could have drawn was that the money found on the 1st Appellant had come from the victim.

5. He did not use the response of the 1st Appellant at the scene as proof of guilt. He directed himself correctly on the law.

6. Neither Appellant, each of whom is unrepresented today, has raised any matter which had not been considered by the Magistrate.

7. Each Appellant was rightly convicted. Each appeal is dismissed.