R. v. HUSSAIN MAQBUL

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 247 OF 1994

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J U D G M E N T

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1. On 14th February 1994 at Eastern Magistrates' Court, the Appellant was convicted, after pleading not guilty, of an offence of theft. He was sentenced to 14 months' imprisonment. He now appeals against his conviction and sentence.

2. The prosecution's case against the Appellant was based almost entirely on the evidence of PW1, who was travelling to work on a tram.

PW1's evidence was that while he was standing on the lower deck, he felt his wallet being removed from his trouser pocket. He turned round and saw the Appellant's co-defendant, Lau Chi Ho, standing there, with the Appellant standing immediately behind Lau. PW1 accused Lau of taking his wallet, and Lau showed PW1 that his hands were empty.

3. A little later, PW1 went to the upper deck of the tram. At the other end of the upper deck, he saw the Appellant and Lau in conversation. PW1 went up to them, which was when Lau accused the Appellant of having stolen PW1's wallet. The Appellant's response was to accuse Lau. PW1 then-began to pull Lau down the stairs, and that prompted Lau to pull the Appellant down the stairs as well. When they got to the lower deck, Lau told the Appellant to take out the stolen money. The Appellant denied having taken anything. Lau then put his hand into the Appellant's trouser pockets in turn, and from one of them he produced a bundle of notes with a restaurant receipt between them, which PW1 recognised as his. Lau then led PW1 to the rear stairwell of the tram and pointed to where PW1's stolen wallet was.

4. The Appellant's evidence was that he had been alone on the tram. He had never been on the lower deck, but had been on the upper deck all the time until he went downstairs when the tram got to where he wanted to get off. That was when he was accosted by Lau, who he had never seen before. Lau put his hands into the Appellant's trouser pocket, and simply pretended to pull out the bundle of notes and the receipt.

5. Lau did not give evidence, and the magistrate was therefore correct not to treat PW1's evidence of the allegations made against the Appellant by Lau as being in any way probative of the Appellant's guilt. The vital question of fact which the magistrate had to decide was whether he was sure that the bundle of notes and the restaurant receipt had been in the Appellant's pocket. If the magistrate was sure of that, the conviction of the Appellant was inevitable, because the only reasonable inference to draw from it was that the Appellant had either stolen the wallet himself or had been a party to its theft by Lau. As it was, from PW1's demonstration as to how Lau had removed the bundle of notes and the receipt from the Appellant's pocket, the magistrate was sure that they had been in the Appellant's pocket all the time.

6. The magistrate's additional finding that Lau had himself been involved in the theft rendered two other parts of PW1's evidence very incriminating against the Appellant: first, the fact that he was immediately behind Lau when PW1 felt his wallet being removed, and secondly, the fact that he and Lau were talking to each other on the upper deck, from which the magistrate could properly infer that they knew each other.

7. I cannot interfere with any of these findings. The magistrate saw and heard the witnesses, and was therefore in an infinitely better position than I to assess their reliability and credibility. The plain fact of the matter is that the magistrate believed PW1 and disbelieved the Appellant. In reaching that conclusion, the magistrate did not ignore the inconsistencies in the evidence which each of them gave. But the extent to which those inconsistencies affected the witnesses' reliability and credibility was a matter entirely for the magistrate. I can discern no basis upon which his process of reasoning as to whether PW1 should be believed can properly be faulted. In addition, the magistrate correctly directed himself as to the effect in law of what he found to be the lies in the Appellant's evidence.

8. For these reasons, the Appellant's appeal against conviction must be dismissed.

9. In Vy Van Kien [1991] 1 HKLR 422, Penlington J.A. said that the offence of pick-pocketing was prevalent in Hong Kong, and a proper starting point was 12 -15 months' imprisonment. He added that aggravating features which would justify an increase in the usual level of sentence included the commission of the offence in places where the public are ordinarily at risk, such as on public transport and in crowded places, and the fact that the offender was part of an organised gang. Both those aggravating features were present in the case in view of the magistrate's finding that the Appellant and Lau were acting as a team. In my view, those aggravating factors would have justified the magistrate in taking 18 months' imprisonment as his starting point.

10. The Appellant did not have the mitigation of a guilty plea or an entirely clear record - though it has to be said that the only offence for which he had ever been dealt with other than by way of a fine or a bind-over was an offence of burglary, which was his last offence and was committed as long ago as 1985. If what the Appellant told the magistrate is anything to go by, it was committed by him when he worked as a hawker. He had had his wares seized by the Urban Services Department, and had broken the lock of one of their offices intending to get it back.

11. The mitigation which the Appellant urged on the magistrate consisted of the facts that he was the sole support of his wife and four children from his earnings as a caretaker, that he suffered from diabetes, that he had always been employed in Hong Kong, and that he had been commended by the police many years ago for having given information leading to the arrest of various people. In my view, those mitigating factors do not justify a discount of more than 4 months' imprisonment.

12. I note that Lau pleaded guilty and was originally sentenced by another magistrate to 12 months' imprisonment suspended for 3 years. In fact, on review the suspension was lifted, and Lau had therefore to serve his sentence, but even if Lau had been dealt with unduly leniently, that would not have been a justification for setting aside a proper sentence on the Appellant. For the reasons I have given, a sentence of 14 months' imprisonment was an entirely appropriate sentence, and the Appellant's appeal against sentence is therefore dismissed.