HKSAR v. TONG WAI HUNG

HCMA367/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.367 OF 2002

(ON APPEAL FROM WSCC 14248 OF 2001)

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J U D G M E N T

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1. This is an appeal against the appellant's conviction for theft and his sentence of nine months' imprisonment imposed by a magistrate at Western Magistracy. It is the first of two appeals of the appellant against separate convictions for theft by two separate magistrates. The other appeal is HCMA 418 of 2002.

2. Each of the theft convictions subject to appeal were separate offences and were dealt with by different magistrates although both offences were factually similar and, indeed, as will be seen in the course of this judgment had certain exhibits in common.

3. The facts of this present case as found by the magistrate were that an overseas visitor to Hong Kong, PW1, met the appellant at a bar in Central Hong Kong. After a few drinks they agreed to return to PW1's hotel room for some sort of romantic liaison. PW1 eventually fell asleep. When he awoke next morning the appellant was gone and so was PW1's wallet and its contents as well as his mobile phone, personal computer and watch.

4. About a week later, PW1 returned to the same bar. The appellant was also there. There was a confrontation. The appellant initially claimed not to speak English, PW1's language, and not to know PW1. Subsequently, however, the appellant did speak some English and told PW1 he would give back the stolen property. He said the goods were somewhere else.

5. He and PW1 then went to another bar where the appellant said the goods were. PW1 at that bar then called the police and subsequently the appellant was arrested. Before the police arrived, the barman had seen the appellant throw an object to the ground. It was subsequently identified by PW1 as his wallet which had formed part of the stolen property. Inside the wallet were found some metal watch band links which PW1 identified as coming from a "Fendi" brand watch such as the one stolen from him and which was never recovered.

6. The issue in this case was fundamentally one of credibility. The magistrate at the end of the day had rejected the appellant as a truthful witness and had accepted PW1 as a credible witness.

7. The appellant's evidence had apparently been to the effect that PW1 was his friend but had given false evidence against him that the appellant had come by the wallet honestly, and that the name of PW1 found in the wallet had been imprinted inside the wallet accidentally as a result of it being transferred from a business card of PW1, which the appellant had placed into the wallet transposing some of its printing onto the wallet.

8. The magistrate was entitled to reject the appellant as a witness of truth and to accept the evidence of PW1, supported as it was by the evidence of the barman who saw the appellant throw away the wallet PW1 subsequently identified as his own.

9. But the magistrate also accepted PW1's evidence to the effect that inside the wallet were found watch band links which he, PW1, recognised as links from a "Fendi" brand watch such as the one stolen from him.

10. The appellant's sole ground of appeal is that this finding by the magistrate was important because it connected the appellant not only with the wallet, which the appellant said he came by honestly, but also with the "Fendi" watch with which the appellant said he had nothing to do. The finding, says the appellant, was demonstrably wrong. In that regard, the appellant said that evidence existed at the time of his trial which would, if he had been able to produce it before the magistrate, have established that the watch links were not from a "Fendi" brand watch such as PW1's but from another brand of watch called a "Raymond Weil" which the appellant said he was wearing at the time of his arrest.

11. I allowed the production before me of both the "Raymond Weil" watch, which was to become the subject of the 2nd trial before another magistrate, and the watch band links which had been produced before the magistrate in the present case and identified by PW1 as coming from a "Fendi" watch such as his own. It should be remembered PW1's "Fendi" watch was never recovered.

12. It was quite apparent that the links in their appearance were identical to the somewhat odd looking links in the "Raymond Weil" watch band. If that were so, it seems unlikely they would have come from a "Fendi" watch as PW1 said they did.

13. This evidence, for whatever reason, was not placed before the trial magistrate. Perhaps it may have had something to do with the fact the appellant was charged also with theft of the "Raymond Weil" watch, and that that watch had been seized by the police and was in their custody pending the forthcoming trial in that matter in a different court and before a different magistrate.

14. It seems to me that there was ample justification for both cases being tried together. For whatever reason that was not done and the appellant had gone to separate trials in respect of these offences.

15. In any event, when the present matter went to trial, the trial magistrate was in no way alerted to the similarity between the watch band links (exhibited as P3 in the present case) and the "Raymond Weil" watch band worn by the appellant at the time of his arrest. The "Raymond Weil" watch was not produced before the magistrate.

16. Accordingly, the magistrate took into account, and indeed accepted PW1's evidence, that the watch band links found in the wallet were from his, or at least a, "Fendi" watch.

17. In this regard, the magistrate said :

" PW1 also testified about his watch band and sought to identify parts of the watch band that were taken from the defendant's person as being parts of his own watch band. I was satisfied that as he said he loved his watch and that he was well able to correctly identify these parts of such a watch and it follows that I was wholly satisfied that the parts that were taken from the defendant's person were parts of a watch band of the same type as PW1 had lost the previous week."

It can be seen that the magistrate had convicted the appellant, at least partly, for that reason.

18. The first time the magistrate heard anything about the matter the basis of this appeal was two weeks after he had convicted the appellant, when the duty lawyer who represented the appellant at the time of sentencing brought to the magistrate's attention that the appellant thought his conviction was unfair as he had not been able to produce an exhibit at his trial, which was important, as for some reason his trial lawyer, a separate duty lawyer, had not assisted him to, in the appellant's words, "get back" the exhibit.

19. This was said to the magistrate in a general and, if one may say, fairly incomprehensible way. That was because it was presented to the magistrate by way of a brief letter from the appellant which was read out by his lawyer.

20. In any event, it seems to me that if this evidence had been presented during the course of the appellant's trial, it might conceivably have had a bearing on the result. It did at least go to PW1's credibility and, further, it attacked the inference drawn by the magistrate that the links found in the wallet connected the appellant to the missing "Fendi" watch.

21. For these reasons in my judgment, the conviction is unsafe and unsatisfactory, though through no fault of the magistrate, and it is quashed and the sentence is set aside.

22. I have heard submissions from both the appellant and the prosecution concerning a re-trial. The value of the stolen property was some $11,000. The method of the theft alleged was well-planned and cynical. It is true the appellant has been in custody since December 2001, but in my judgment, the public's interest in having this matter go to trial is predominant. I understand the witnesses are still available or will become available.

23. Accordingly, I order the matter be remitted to the magistracy for re-trial before a different magistrate.