R. v. IP WAI-MING, Richard

1996, NO. MA 1509

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

(On Appeal from STC No. 2071 of 1996)

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J U D G M E N T

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1. The applicant, IP Wai-ming, was convicted after trial on a charge of Theft of 21 registered letters belonging to the Post Master General. He now seeks leave to appeal against such conviction.

2. At the material time the appellant was working as a postman in the Sha Tin Post office. It was not disputed that the 21 registered letters, the subject matter of the charge, were originally sorted out for delivery by the 1st prosecution witness, Mr PANG, who was also a postman and had been working as such for ten years. The letters were put into a pigeon hole after being sorted out by Mr PANG. Mr PANG subsequently found those letters missing after he was absent from his post for a short period. He then reported this matter to his supervisor.

3. It is not in dispute that the applicant at the material time was a co-worker of Mr PANG, working in the same office. After the matter was reported to the supervisor, the supervisor for reasons which are not readily known chose to approach the applicant at the bus-stop and confronted the applicant, and indeed he went to the extent of searching the applicant's postal bag but nothing suspicious was found.

4. The missing letters were subsequently found inside a box which was placed on top of a metal box at the rear of a bicycle belonging to the applicant. That particular bicycle was at the material time placed in the bicycle room of the Post Office. The letters were allowed to remain there and the matter was then reported to the police.

5. Later in the same afternoon the applicant was seen entering the bicycle room and one minute later he came out of the bicycle room with the bag containing the 21 registered letters, the subject matter of the charge. He then took the route at the back alley of the train station and which, according to the learned magistrate, could lead to Pai Tau Estate, although in the plan in question suggested that the applicant in fact did not turn to the side leading to Pai Tau Estate, instead he turned around to the other side, leading to the Hang Seng Bank. The applicant was then intercepted by his two colleagues. The evidence according to a prosecution witness was that on seeing his colleagues the applicant turned around, tried to leave but on the other side he was confronted by another colleague who was coming from the opposite direction.

6. The applicant then placed the letters in the bag together with his own postal bag on the ground and said words to the effect that he had found something and was about to take them back to the Post Office.

7. One of the witnesses said when the applicant took out the 21 letters in a bag from the postal box he did not open the bag to examine the content.

8. After his arrest the applicant explained in a cautioned statement again to the effect that he found the letters by chance and was on the way to take them back to the Post Office.

9. The applicant in his evidence repeated more or less the same explanation. He said he found the bag containing the 21 letters and another bundle of letters on top of the boot of his bicycle in the bicycle room when he went there to try to locate his missing pager. He said he put the letters under his arm with the intention of returning them to his office but instead of going back to the office direct he chose to take a longer route as he wanted to withdraw some money from some ETC Machine installed at the train station as it was crowded. The applicant also denied in his evidence that when being confronted by his colleagues he tried to avoid them.

10. The learned magistrate in his statement of findings having taken into consideration the background of this matter including the applicant having a clear record, rejected the evidence of the applicant. From the evidence of the prosecution witnesses which he accepted, he inferred that the applicant was indeed trying to steal the letters and he convicted the applicant.

11. In this appeal it was argued on behalf of the applicant that the evidence is consistent also with the innocence of the accused. It was also further suggested that the learned magistrate failed to take into consideration certain inconsistencies in the evidence of the prosecution witnesses. There may well be some minor discrepancies as the learned magistrate himself recognised between the evidence of the various prosecution witnesses but such discrepancies, in my view, clearly were not of any significance in the light of the allegations by the prosecution as well as those advanced by the applicant at the trial.

12. What was not in dispute was that the applicant was found carrying the missing letters on his person. He was seen removing those letters from the box from his own bicycle earlier, he then left the bicycle room and instead of taking a direct route back to the office chose to take another route. He didn't bother to look at the contents of the bag containing the 21 letters which he removed from the box which, in my view, is clearly inconsistent with assertion that he intended to return the letters to the Post Office, and when being confronted by his colleagues he chose to turn around to try to leave. He was only stopped by another colleague of his who was approaching him from in fact the opposite direction.

13. On such evidence the learned magistrate was perfectly entitled to reject the evidence of the applicant that he was trying to return the stolen letters to the office. On such evidence the learned magistrate was perfectly entitled to infer that the applicant was part of this attempt to steal the letters.

14. There was nothing raised in this appeal which caused any doubt, I do not find the convictions against the accused in any way unsafe or unsatisfactory. He had been properly convicted on the evidence and the application for leave to appeal must therefore be refused.