THE QUEEN v. CHAN TUNG-YU AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 227 of 1985

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BETWEEN

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JUDGMENT

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1. The appellants were convicted, after trial, on a joint charge that they attempted to steal the property of an unknown person. In support of the appeal against conviction, Mr. Matthews pointed to a discrepancy in the evidence of one of the prosecution witnesses. Briefly the evidence of that witness was that he saw the two appellants in public in the Tsim Sha Tsui area attempt to steal from a Filipino national. The detective, at the time, was in the company of another police officer who also gave evidence. The effect of the latter's evidence was that he assisted the first prosecution witness to arrest the two appellants. The discrepancy referred to by Mr. Matthews relates to a description by the first prosecution witness of the relative positions of the two appellants at or just before the time of the commission defence. At one time in his evidence the witness said that it was one appellant who was on the right and another who was on the left and at another time that it was the other way round. This discrepancy was in the mind of the learned magistrate when he considered his verdict. He makes reference to it in his statement of findings and says that notwithstanding that discrepancy, he accepted the evidence of the police officers that the two appellants did attempt to steal from the Filipino. Mr. Matthews has submitted that the learned magistrate should have taken this discrepancy into account and considered whether it raised a doubt as to the accuracy of the observations that the witness was testifying about. The discrepancy, of course, could have been simply a verbal slip on the part of the witness when he was giving evidence, but even if it were not it would only create a doubt as to the accuracy of his observations if as Mr. Matthews attempted to submit, it did cast doubt on the accuracy of the observations about which he gave evidence. That, it seems to me, could only arise if one knew what the relative positions of the witness and the two appellants were at the material time as well as the relative position of the Filipino. I can well see that magistrate could consider that the discrepancy in the circumstances of the case -- particularly when it is borne in mind that the second prosecution witness was not cross-examined about this matter at all -- that the discrepancy had no effect at all on the general tenor of the witnesses' evidence, namely, that he did see an attempt by one of the appellants to steal and that the actions of both indicated that they were acting in concert and that therefore it did not matter which one of them made the actual attempt to remove the property of the Filipino. The magistrate says that he adverted to this discrepancy and that notwithstanding it he was convinced beyond reasonable doubt that the evidence established the commission of the offence by both appellants acting jointly. The ground of appeal advanced against the correctness of the magistrate's decision to my mind has no substance. I therefore dismiss the appeal against conviction.

2. Mr. Matthews has applied for leave to appeal against sentence. The sentence imposed on each was imprisonment for 6 months. It is conceded by Mr. Matthews that he cannot argue against the sentence on the basis that the period is excessive but he does submit that taking account of the previous records of each appellant, neither having been convicted of a pick-pocketing type of offence before, that the learned magistrate should have considered suspending the sentence which he did impose.

3. Each appellant has a criminal record. One appellant has ten previous convictions but most of them are for offences completely unrelated to an offence involving an element of dishonesty -- although the first appellant does have one previous conviction for an offence of obtaining property by deception. The second appellant has a number of previous convictions but all recorded on the one occasion for the offence of burglary. If the learned magistrate had not adverted to the question of whether or not he should suspend the sentence I might feel disposed to interfere with the sentences he has imposed. But in this case, although there is no statement of findings in connection with sentence because there was no appeal originally against them nevertheless the magistrate's record discloses that after he had found the appellants guilty, each asked through the solicitor who was then representing them for a suspended sentence. The magistrate heard an application to review the sentences some five days later. Again a submission was made by a solicitor representing them that the sentences ought to be suspended and at that stage the submission could be supported by the argument that each had already had "a taste of imprisonment". The learned magistrate confirmed the sentences which he recently imposed and refused to order that the sentences be suspended.

4. In a submission made in mitigation after the appellants were found guilty, it was accepted that pick-pocketing is a problem in the Tsim Sha Tsui area. The learned magistrate is a magistrate who is familiar with the problems of that areas. I can see no basis on which I could properly interfere with the decision that he has made not to suspend the sentence in either case. I therefore, having given leave to appeal against the sentence, dismiss the appeal in each cases.