TUEN MUK WO-HIM v. THE QUEEN

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JUDGMENT

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Jones, J.

1. The applicant Tuen Muk Wo-him was convicted by His Honour Judge Leonard in the Kowloon District Court on the 7th March 1986 after trial of the tenth charge of theft in a charge sheet which contained ten charges relating to eight defendants. This applicant was the eighth of those defendants. He received a sentence of 12 months imprisonment and he today applies for leave to appeal against his conviction.

The particulars of the offence were as follows:-

 

"HO Hoi-siu, Angel also known as HO kwan-ling, Angel and TUEN MUK Wo-him, Bee on a day between the 1st September 1984 and the 26th September 1984 in Hong Kong, stole a Hong Kong British Passport No. A097263, the property of the Hong Kong Government."

2. Ho Hoi-siu, Angel was the 7th defendant and pleaded guilty to this charge and was sentenced to a term of 8 months imprisonment. After her sentence she gave evidence for the prosecution and testified that the applicant, who was her boyfriend, enquired in 1984 whether she had a Hong Kong British Passport. Having ascertained that she did, he asked her to sell it to him for $1,500. Although she realised that it was unlawful, she agreed and later handed the passport to the applicant and received the sum of $1,500 in cash. According to her evidence, she said that the transaction took place in the presence of a Mr. Kam, but Mr. Kam did not give evidence at the trial. After she had handed the passport to the applicant, she reported its loss to the Immigration Department and later obtained a new passport. During cross-examination, she said that by giving evidence she hoped her sentence would be reduced on appeal and also denied a suggestion made to her that she had sold the passport to another person by the name of Ah Yui. The 7th defendant was the only witness called on behalf of the prosecution.

3. The applicant did not give evidence nor did he call any witness.

4. Two grounds of appeal have been argued by Mr. Sarony, counsel for the applicant. The second ground related to the lack of corroboration. However, the trial judge had warned himself of the dangers of convicting upon the evidence of the 7th accused who was an accomplice. We do not find any merit in this ground of appeal and I therefore come to the first ground which was to the effect that there was no evidence that any passport bearing the number set out in the particulars of the offence had been stolen. During the course of his judgment relating to the second charge which was a conspiracy charge against the 1st, 2nd and 3rd defendants, the matter of the passport was referred to by the judge at page 15 where he said:

"When the 7th defendant gave evidence a document appearing to be a copy of a Hong Kong Immigration Department Departure Card was shown to her and she testified that the address shown on it was not hers, and that she had not signed it. The document was marked as an exhibit (P46) and it contained a passport No. to wit A097263 together with details indicating that someone using the name Angel Ho Hoi Siu had passed through Immigration in order to travel on the flight in question." (This related to a flight to Hong Kong by the 4th defendant when it is alleged that she used an unlawfully obtained travel document.)

The judge goes on to say later on page 16:

And further on the same page the judge had this to say:

"If I am right about the inadmissibility of the copy document (P46) and in any case in the absence of evidence as to the number of the 7th defendant's passport, there was no evidence that the person shown on the flight manifest as HO Hoi Siu was using a name or a passport to which he or she was not entitled."

5. We agree with the judgment of the judge with regard to charge 2. There was a lacuna in the evidence adduced by the prosecution at the trial which affected the proof of the 10th charge concerning this applicant. On this ground and with reluctance we grant leave to appeal against the conviction and allow the appeal. The conviction will be quashed and the sentence is set aside.