HKSAR v. WONG HON WAI, WILLIAM

HCMA 1245/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRATES APPEAL NO. 1245 OF 2002

(ON APPEAL FROM TWCC 2507 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 for an offence of theft by finding. It arose because police officers were suspicious of the actions of the appellant in the street; they searched him and found someone else's passport and a few associated documents in his possession.

2. According to the police officers, and this was disputed, he said that he had found the passport in MacDonnell Road. Later, to the police in a written statement under caution and in his evidence at trial, he said he had been sitting that day at lunch time in a fast food shop with some other people and they had left the passport and the papers on the table and that he had taken possession of them with an intention of restoring them to the true owner. It was the fact that when he saw the police officers in the street, it was Caine Road, he turned around, walked away and went into a laundry pretending he had business there when in fact he did not.

3. The magistrate rejected the claim made by the appellant that he intended to return the passport and was satisfied that the ingredients of theft were established. The appellant today says that there was no independent witness and I have tried to explain to him why the magistrate drew the inference and I have directed him to try to attack the drawing of the inference.

4. Unfortunately for him, the appellant really has not been able to advance anything to attack it. He asks at this late stage that I adjourn his case so that he can be represented. I have declined to do that. If I thought there was any way a lawyer could sensibly help him in these circumstances, I would be sympathetic, but in my judgment he would be wasting his time and his money.

5. The inference of guilt was one that was perfectly open to be drawn on the facts established by the evidence, because common sense tells one that if people leave a table you are sitting at and leave their passport there, you do not yourself take it off and keep it on your person. You would either say to the persons who ran the cafe in question, "Look, if those people come back, here is the passport, you have it, or tell them I am taking it around the corner to the police station." A moment's thought would tell you that someone who loses their passport would go back to where they last had it.

6. That, taken with the conduct of the appellant, of not going to the police with it and when he sees some policemen, of turning around and seeking to hide from them, reinforces the point being made. These considerations are established on his own case. It was also the fact that, for good reason which he gave in his statement of findings, the magistrate was satisfied that the police officer who stopped the appellant was telling the truth when he said the appellant gave a story inconsistent with what he later asserted.

7. In those circumstances, the magistrate was quite entitled to infer, as indeed I do, that the appropriation was a dishonest one with the requisite intent. Accordingly, the order I make is to confirm the conviction.