HKSAR v. CHAU CHUNG CHUEN

HCMA1073/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1073 OF 2001

(ON APPEAL FROM STCC 1075 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 14 September 2001 by Ms Ada Yim sitting at Kwun Tong Magistracy of the offence of theft. The particulars of the charge were that he, on or about 17 June 2000, stole one Hong Kong Bank gold credit card, numbered 4966-0400-0603-5000, the property of Tse Yiu Wai. On 28 September 2001, he was sentenced to seven months' imprisonment. He appealed against both conviction and sentence.

2. On the day of the hearing of the appeal, the appellant's counsel Ms Catherine Wong sought leave to withdraw the appeal against sentence. Leave was granted and the appeal was therefore only against the conviction.

3. The victim and appellant were friends for many years and on the night of 16 June 2000, the appellant had stayed at the home of the victim. The following morning, they went to Wong Tai Sin MTR station as the victim was going to China that day. The victim had to return home from the MTR station to pick up his mobile telephone, so he left his luggage in the custody of the appellant while he returned home.

4. A CCTV tape of the bank which was produced in evidence showed that on 17 June 2000, the appellant used the victim's Hong Kong Bank credit card to check the balances of the two accounts in that credit card.

5. On 22 June 2000, the victim discovered the loss of the credit card and reported the loss to the bank.

6. The bank's records showed that between 17 and 22 June 2000, a total sum of $60,000 was withdrawn from the victim's account, six withdrawals each of $10,000 having been made on six different occasions at the automated teller machines.

7. One of the main issues at the trial was whether the victim had asked the appellant to check the account balance on his behalf. The appellant testified that that was the case. The victim denied that he had asked the appellant to do that. The magistrate found, as she was entitled to, that the victim was an honest witness and she therefore accepted his evidence. She found that what actually happened was as narrated by the victim. On the other hand, the magistrate found that the appellant's evidence was not credible and she declined to accept his evidence. She found as a fact that the victim did not authorize the appellant to use the credit card in question. She also found as a fact that before 17 June 2000, the appellant already knew that the victim wrote down the PIN numbers of all his bank cards in his notebook and that prior to that date, the appellant already knew that the victim's bank cards were kept in his wallet. The magistrate therefore drew the irresistible inference that on or before 17 June 2000, the appellant stole the credit card in question and did not return the said card to the victim.

8. The first ground of appeal relied on by the appellant's counsel was that the magistrate erred in law and exercised her discretion wrongly when she invited and allowed two bank officials to produce the records of the account of the said credit card to show withdrawals from it after 17 June 2000. It was submitted that evidence of these transactions was highly prejudicial, the transactions were not the subject of the charge and were irrelevant and had little or no probative value. Counsel for the respondent, Mr Raymond Cheng, submitted that these records were relevant because they showed, inter alia, that the card could not have been stolen in China during the victim's visit there as from 17 June. I agree with that submission. The magistrate properly found that these subsequent transactions were made by unknown persons and therefore, in my judgment, no prejudice could have been caused to the appellant.

9. The second ground relied on by the appellant was that the conclusion of the magistrate was unsafe and unsatisfactory because she failed to consider the material and important discrepancy of the victim during the trial and/or placed insufficient weight to such evidence. I do not agree. The magistrate analysed the victim's evidence and in particular, the alleged discrepancy between his evidence and what was shown on the CCTV tape and found that any differences between the two did not affect the reliability of his evidence.

10. The main crux of the issues at the trial was, as counsel for the appellant put it in her written submissions, "whether the appellant was using the card with the authority or permission of the victim would rely on the evidence of the victim and the appellant". As I mentioned above, the magistrate made the findings that she did and in my view, she was quite entitled to make those findings. I find the conviction unassailable and the appeal is dismissed.