HKSAR v. LE THI HONG THUY

HCMA 35/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 35 OF 1999

(On appeal from SKCC 2408 of 1998)

-------------------

----------------------

J U D G M E N T

----------------------

1. This is an appeal against a conviction for attempted theft at South Kowloon Magistracy on 19 November 1998 after trial.

2. The facts of the case, as accepted by the magistrate, were that the Appellant (originally D2 at trial) a 26 years old Vietnamese girl, was with a male (originally D1 at trial) in the Trendy Zone shopping arcade in Nathan Road at the relevant time. They had followed behind the victim (PW1 at trial) and her girl friend as they approached an escalator in the arcade leading to an upper floor.

3. Some minutes before this, unbeknownst to them, the Appellant and her boyfriend had attracted the attention of an off duty police officer (PW2 at trial) who had become suspicious of them when he observed them staring at rucksacks and bags carried by female shoppers in the arcade.

4. He had followed behind them to the vicinity of the escalator and had there observed the present Appellant place her hand under a rucksack carried on the back of the victim. At the same time he saw her male partner commenced to undo the zipper of a pocket of the rucksack.

5. The victim had felt something move her rucksack and had turned and observed a hand touching it. She saw the Appellant and her male companion close behind her and as they started to move away she saw they were grabbed by another person, PW2, an off duty police officer. Subsequently, in a short period of time, other police officers arrived at the scene.

6. The Appellant appeals against her conviction on the grounds that the conviction was against the weight of evidence and that there was no sufficient evidence upon which her conviction could have been founded.

7. The fundamental issue at the trial of the Appellant, who did not give evidence, was the credibility of the victim PW1, the police witnesses and the Appellant's companion, the 1st Defendant, who did give evidence.

8. The magistrate set out very carefully in her Findings her reasons for placing no weight on D1's evidence. She went on nevertheless to remind herself that the burden of proof and the standard of proof remained on the prosecution throughout.

9. She considered carefully the evidence of the prosecution witnesses, each of whom had been subjected to a detailed and thorough cross-examination. She carefully directed her mind to the inconsistencies in their evidence. In her findings she stated :-

"I was impressed that the Prosecution witnesses were each honest and credible witnesses, who gave their evidence in a straight-forward manner, simply yet cogently. They answered questions sensibly and directly. I looked for inconsistencies both within and between their various accounts, as well as inherently unlikely or implausible evidence. Their answers were on the whole consistent and inherently credible. Where I found inconsistencies, I looked to see if they were material, simple lapses of memory, or a different person's view of the same thing and I made assessments to determine whether such inconsistencies should affect my view of the witnesses' credibility and reliability."

10. She then set out the inconsistencies she had considered and assessed them in those terms.

11. In short, the magistrate carefully analysed the evidence. She was aware that the primary issue was the credibility of the prosecution witnesses and made reasoned findings as to the credibility of those witnesses. In that way she arrived at her findings of fact. Once having assessed the prosecution witnesses as credible and reliable her findings of fact followed on to her conclusions.

12. Her approach to the evidence in this case and her findings of fact cannot be faulted and there is no merit in the Appellant's appeal.

13. Accordingly the appeal is dismissed.