HKSAR v. LEUNG MAN CHUN

HCMA996/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 996 OF 2008

(ON APPEAL FROM TWCC2108 OF 2008)

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J U D G M E N T

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1.  This is an appeal against two convictions for theft.

2.  The complainant was known to the Appellant; they were friends.  The complainant was fixed up by the Appellant with a job where he worked.

3.  The complainant worked for two days, so two days’ wages were owing to him.  The employer gave wages for those two days to this Appellant, and he testified to that effect at the trial.  The complainant’s evidence was that he was never paid.  The Magistrate believed the complainant.  The Appellant did not give evidence.

4.  The theft of the two days’ wages was the subject of the 1st charge of theft.

5.  The 2nd charge concerned the complainant’s telephone.  The case was that that had been lent to the Appellant and never given back.  On this matter the Appellant did call evidence.  He called his previous girlfriend, who said that there had been no loan of the telephone; rather, that the telephone had been sold, and the proceeds of the sale lent to the Appellant.  The Magistrate did not believe that witness, and he gave some reasons for doing so :  there were some differences between her evidence and what had been put on the Appellant’s behalf.  He, of course, had the advantage of seeing and hearing the witnesses whose credibility was in issue.

6.  Today the Appellant is unrepresented before me, and his submissions, even with as much help as the Bench can give him, amount to no more than assertions that he was not guilty.

7.  On his behalf, I have looked very carefully at the reasons the Magistrate gave, and, as was to be expected from an experienced Magistrate like this, he very competently covered all the ground and demonstrated great application to the facts and all the points that were raised by the duty lawyer who appeared for the Appellant at the time.  The statement of findings is a persuasive document, demonstrating the convictions to be good.

8.  This is a rehearing, and even though it is difficult for a judge on appeal to take a different view about issues of credibility, the matter is open.  But there is nothing here that makes me doubt the findings as to credibility, and indeed, the material is such that it indicates to me that those findings were to be expected.

9.  The complainant had the support of the employer as to the payment of the wages, and for whatever reason - I do not know why - the Appellant elected not to give evidence.  It meant the evidence on that 1st charge was all one way.  I appreciate that if there had been doubt as to the credibility raised by the evidence of the previous girlfriend it would have affected the issues on Charge 1, but the fact is when the Appellant here says to me, with apparent sincerity, across the court, “I really didn’t do what they said,” the time to have put that in evidence was of course at the trial, not here before me in mere submission.

10.  The other major factor in a case like this is what was in it for the complainant to make up a false story?  There was no apparent gain for him.  He was never going to get his money back, in the circumstances, and the idea that he did it merely to convict a man that he knew to be innocent is difficult to countenance.  Motivation in this case is a helpful factor in coming to the right conclusion as to where the truth lay.

11.  Accordingly, the appeal against these two convictions is dismissed.

12.  There is no appeal against the sentence of DATC that was imposed.