HKSAR v. FONG CHUN KWOK

HCMA 499/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 499 OF 2002

(ON APPEAL FROM ESCC 271/2001)

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J U D G M E N T

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1. The Appellant in this case was convicted after trial of one count of theft contrary to s. 9 of the Theft Ordinance. The Appellant now appeals against this conviction.

2. The prosecution's case is a very simple one. PW1, the victim, gave an account that at the material time, she had detected the Appellant taking her mobile phone from her handbag, she said she shouted out and the Appellant then ran off holding her phone. PW2, was an off-duty senior inspector of police, he chased the Appellant and shouted at him, telling him he was a police officer and ordered him to stop, but the Appellant did not do so. Eventually, the Appellant was apprehended by PW2 and during the chase, the Appellant had discarded the mobile telephone as PW2 saw him dropping the phone on the ground.

3. The first prosecution witness did not see the phone being dropped but during the chase a passer-by did point out to her that her phone was lying on the ground and she picked it up. PW2 was not cross-examined at all during the trial by Defence counsel.

4. The Defendant gave evidence and he also called two government doctors, they were Dr Cheng and Dr Yuen. The Appellant said that he had no intention to keep the phone and he only took it because he liked the feeling of elation he gets when he returns the phone to the victim and the victim, is grateful to him.

5. The Appellant, under cross-examination, said that after he was discovered by PW1 and she had shouted at him, he ran away because he said he was afraid he would be "caught". He maintained that he had no intention to permanently deprive PW1 of her phone and that the phone had dropped to the ground during the chase, needed not throw it deliberately on the ground.

6. As far as the medical evidence is concerned, Dr Cheng was a clinical psychologist. He produced a report on the Appellant based on his interview with the Appellant and also with the Appellant's wife. His conclusion was that the Appellant was suffering from kleptomania.

7. The third defence witness was Dr Yuen who was the visiting consultant psychiatrist at the Siu Lam Psychiatric Centre. He diagnosed the Appellant was suffering from a severe depression without psychotic symptom and his conclusion was that the stealing behaviour of the Appellant was related to his abnormal psychological need, which is the seeking of a transient moment of gratification and happiness. But, Dr Yuen said that all the information was essentially provided by the Appellant himself and there is nobody to confirm or refute what the Appellant had told him.

8. Dr Yuen also mentioned that the Appellant was fully aware of what he was doing and definitely capable of forming the necessary intent to commit the crime and this was noted by the learned Magistrate in his Statement of Findings.

9. On the appeal, Mr Chan, representing the Appellant, submitted two grounds of appeal. Ground one was that the learned Magistrate misunderstood or misinterpreted the evidence regarding the discarding of the phone and the expert's opinion. I do not see any merit in that ground at all. The learned Magistrate had the evidence before him from the senior inspector that the phone had been dropped on the ground. In any event, it was not ultimately relevant to the Magistrate's findings.

10. As far as the experts' opinions are concerned, the Magistrate had an absolute right as to whether he accepted the opinions of the doctors and he went through quite carefully, in his Statement of Findings, both doctors' opinions and as far as the MMPI test, was concerned, it is only a personality test and the Magistrate was well aware of that.

11. As far as ground two is concerned, Mr Chan complained that the learned Magistrate had failed to properly consider or inadequately considered the Appellant's defence, namely that he had no intention to permanently deprive. The learned Magistrate went through carefully the evidence of the Appellant and at the end of the day concluded that he did not believe him.

12. As far as the opinions of the doctors are concerned, the learned Magistrate doubted that he could rely on the objectively their opinions because their opinions were based mainly on the subjective information provided by the Appellant. The Magistrate had warned himself quite properly that even though he did not believe the defence evidence, he still had to consider if the prosecution had proved their case. At the end of the day, he considered that the evidence of the prosecution witnesses were honest and reliable and that he accepted that their evidence in relation to the taking of the phone, the pursuit, the apprehension and the manner of the Appellant upon an apprehension. He concluded that the Appellant's action was deliberate, intentional and dishonest. Therefore, in those circumstances, his conclusion was that the Appellant had the dishonest intention of permanently depriving the victim of her phone.

13. Mr Chan in making his submission on this point refers me to a case of Warner which was reported in [1971] CLR 114 where the Court of Appeal in England said that there could be no theft without the intention of permanently depriving another of his property. Looking at the later cases that Ms Shine has very helpfully submitted, it is clear that that restrictive interpretation no longer holds sway. Under s. 6(1) of the Theft Act in England which is similar to s. 7(1) of our Theft Ordinance Cap. 212, the definition of appropriation of property belonging to another is:

"A person appropriating properly belonging to another without meaning to lose the thing itself, is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's right......"

It is quite clear from that section that the Magistrate was entitled to infer from the Appellant's action that he was treating the thing as his own to dispose of regardless of the other person's right. (See Fernaudes [1996] 1 Cr. App. R. 175)

14. In one of the cases referred to this court by Ms Shine, the case of Coombes in [1998] 2 Cr. App. R. 282, at p. 287 where Mantell LJ cited Lord Lane CJ in the case of Lloyd, Bhuee and Ali (1985) 81 Cr. App. R. 182 where he said:

"Bearing in mind the observation of Edmund Davies LJ in Warner (1970) s. 5 Cr. App. R. 93, we would try to interpret the section in such a way as to ensure that nothing is construed as an intention permanently to deprive which would not prior to the 1968 Act have been so construed. Thus the first part of s. 6(1) seems to us to be aimed at the sort of case where a defendant take things and then offers them back to the owners for the owner to buy if she wishes. If the taker intends to return them to the owner only upon such payment, then, on the wording of s. 6(1) that is deemed to amount to the necessary intention permanently to deprive."

15. The Court of Appeal illustrates followed Fernaudes and said the subsection should not be given its restricted interpretation.

16. The fact is, even if at the end of the day, the Appellant took the phone and after a period of time intended to return it, nevertheless at the time when he took the phone away and ran away with it, he is taking the phone and intending to deal with it, to treat the thing as his own to dispose of regardless of the victim's right. So I consider therefore, that there is no merit in the second ground of appeal. The appeal is therefore accordingly dismissed.