R v CHENG WAI LEUNG

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 20 OF 1994

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J U D G M E N T

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Hon Yang, CJ:

1. The appellant appeals against his conviction after trial of attempted theft at the South Kowloon Magistrates' Court.

2. Three grounds of appeal are advanced.

3. In the event, I need only refer to part of the first ground of appeal, namely, that the learned magistrate, in his oral decision, accepted the evidence given by PW4, whose role was described by two police officers, but in his written Statement of Findings, he rejected the evidence of PW4. Whilst the magistrate accepted the evidence of the two police officers who kept observation on the appellant and PW4, the evidence of PW4 was nevertheless of material importance in the case. PW4 was described as a person who was together with the appellant who made the alleged attempt to pickpocket a Japanese tourist. However, in evidence, PW4 said nothing had happened prior to their arrest and that he and the appellant were not trying to pick anybody's pocket. It is extremely difficult to reconcile the magistrate's conclusion on the credibility of PW4, and I for one am unable to imagine any reason for the discrepancy in his conclusion. This in my view is sufficient for me to dispose of the appeal. But before so doing, perhaps I should add one word on another ground of appeal which was given some prominence in the written grounds of appeal. I allude to the English translation of a cautioned statement made by the appellant. According to the English translation produced by the prosecution (Ex. P1) , the appellant was reported to have said, inter alia, "Ah Sir, I did not get anything in the fishing". It is, I think, common ground that the word "fishing" meant pickpocketing.

In the English translation prepared by the defence (Ex. D1), the appellant was recorded as having said: "Ah Sir, I did not fish anything". Whether there is any real difference between the two versions, I do not think it is necessary for me to make any definitive observation on. The magistrate, on the other hand, feels that there is not a lot of difference between the two. He thought that both versions described an act of stealing, but with no result. On the other hand, it could perhaps be argued that in the first version, what the appellant said could be taken to mean that he did not get anything in his attempt to pickpocket, whereas in the second version he was perhaps saying that he did not pickpocket. But as I said, this is not necessary for the decision of this case.

4. The appeal is allowed for the reasons which I have stated earlier. The conviction is quashed and the sentence set aside.