THE QUEEN v. SUEN CHI HING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 606 OF 1991

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

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

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

JUDGMENT

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

1. The appellant was convicted on 14th clay 1991 on a charge of theft. The Crown's case was that on the 12th of May this year in the Departure Hall of the Lo Wu Crossing Point , a travelling tourist from Taiwan, a Mr. Liu, having made a telephone call turned found to find the appellant holding Mr. Liu's wallet which contained some money, a passport and other documents. He confronted the appellant and accused him of stealing his wallet and it is not in dispute that the appellant then made off, pursued by two other persons who caught him. He was then arrested by a police constable. The question for the magistrate was whether or not the appellant  had simply picked up the wallet on the floor or whether he had taken it from the tourist's bag.  The appellant did not give evidence but a statement he had made was admitted in which he had said he found the handbag on the floor and the constable was mistaken as to the person who had committed the offence.

2. Mr. Christopher Grounds, who appears here, as he did below, for the appellant put to Mr. Liu that the evidence he had given was not in conformity with a witness statement which had been recorded from him on the same day that the offence was alleged to have been committed and it was his main submission that the evidence was so different to what Mr. Liu had said in his statement as to render it unreliable.

3. Mr. Liu not only gave evidence that he had actually seen the appellant unzipping his large luggage bag into which he had placed his wallet but also - and clearly a vital piece of evidence - he had then seen the appellant unzipping the wallet and examining its contents. If that was the case it would be evidence totally inconsistent with any suggestion of having picked up the wallet in an innocent manner.

4. Mr. Liu was emphatic in his evidence that the event took place very close to him - some two feet away when he observed the appellant unzipping the wallet. Witnesses are notoriously unreliable as to matters of distance but this was specifically put to him. It was suggested that perhaps it was five or six feet away but Mr. Liu was adamant that the appellant was standing less than that from him and indicated about one arm's length.

5. It was quite clear that there was a language problem between Mr. Liu, who speaks mainly Mandarin, and the police officer who recorded the statement, who only speaks Cantonese. It could be that something was omitted from the Statement but, as has been pointed out by Mr. Grounds, the witness did say that he had read through the statement and although there may be some slight differences between Cantonese and Mandarin characters the written languages are very similar. I find it very difficult to accept that if in fact Mr. Liu did see the appellant actually tare the wallet from the large bag and then unzip it he would not have said so and that would have been recorded in his statement.

6. Nevertheless, as Mr. Grounds quite properly concedes, this is a question of fact and is a finding, of  credibility with which an appeal court,  as has been said on so many occasions, must tie slow to interfere. Here however it is argued that the magistrate has not dealt with this matter adequately and has not placed as much importance on the discrepancy as he should have.

7. He refers to the difference between the statement and Mr. Liu's evidence as an omission and he then goes onto say that it only went to matters of detail. I cannot agree with that statement. It seems to me that this evidence as to the appellant examining the wallet was not a matter of detail, it was a vital piece of evidence for the prosecution.

8. Mr. Liu's evidence was that he turned round after making a phone call and saw the appellant first of all taxing the wallet from h s large bag and then unzip the wallet and examine its contents. That any thief, having removed a wallet from a travelling bag, would stand at a distance of two feet from its owner, unzip it and examine the contents seems nighly unlikely, though it could be true. The fact however that in his statement Mr. Liu mentions nothing about either seeing him take the wallet from the bag, unzipping it or examining the contents must cast the very gravest doubts on that evidence, and it was crucial to the central question of whether there was a possibility that the appellant had simply picked up the wallet.

9. I am left with the very strong impression that, although no doubt inherently dishonest, Mr. Liu did exaggerate his evidence as to what he saw when he turned round after making his phone call and it could well be that he only saw the appellant holding his wallet. That, couplet with his evidence that he had put the wallet in the travelling bag which he had then zipped up may well have teen enough to convince the magistrate that the appellant had removed the wallet from the bag. However that was not his evidence; he went much further.

10. I am reluctant indeed to interfere with a finding of fact of an experienced trial magistrate but having read the evidence here and having heard the submissions made I find that the conviction is unsafe. The appeal is allowed and the conviction quashed.