HKSAR v. RELOSO DANIEL RUIZ AND ANOTHER

HCMA679/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 679 OF 1999

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REASONS FOR JUDGMENT

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1. These are my reasons for dismissing the Appellants' appeal against their conviction. The two Appellants, both of whom Philippine nationals, were convicted of one charge of theft after their trial in the Shatin Magistracy on 21 May 1999. Both were sentenced to 15 months imprisonment.

2. The facts giving rise to the charge of theft, I regret to say, are a far too common occurrence in Hong Kong. Shortly after 12:30 on 26 April 1999, the first prosecution witness, Mr Chou, a Taiwanese visitor, alighted from the train at the Shatin KCR Station. He then proceeded to take an escalator from the train platform to the concourse. On his way up, he noticed he was surrounded by a group of Filipinos with the 1st Appellant standing to his front and the 2nd Appellant standing next to him. While on his way up, the 1st Appellant suddenly appeared to have lost his balance and fell. A Filipino behind Mr Chou pushed against him. In the meantime, Mr Chou noticed the 2nd Appellant inserting his hand into his trousers pocket and took out something. Mr Chou immediately confronted the 2nd Appellant but found that he was surrounded by a group of Filipinos. There was nothing Mr Chou could have done then as he was outnumbered and the group of men fled in different directions. Later upon checking, Mr Chou found that HK$800 and NT$2,000 in notes were missing from his trousers pocket.

3. Mr Chou then went for a meal. On his return, he noticed the group of Filipinos he had seen earlier gathering around the ticket office. In the meantime he continued to observe the group for some 21/2 hours until about 4 p.m. He then reported the matter to the police. When he returned in the company of two police officers, he noticed only two Filipino males were still there. He pointed the two males out to the police as the persons who had been standing in front of him on the escalator and the person who had inserted his hand into his trousers pocket. Both men were then arrested and charged with the offence of theft.

4. The Appellants were represented at the trial and their case was one of mistaken identification. Mr Chou and the two police officers appeared at the trial as prosecution witnesses. The 1st Appellant elected not to give evidence. The 2nd Appellant took the witness stand and no defence witness was called.

5. In his evidence which was rejected by the learned Magistrate, the 2nd Appellant told the Court he came to Hong Kong with a view of joining a ship to work as a sailor. On the day in question, he met the 1st Appellant at the concourse of the KCR station at Shatin at about 4 p.m. Both of them were standing there when the police suddenly descended on them and arrested them for an offence which they had never committed. According to the 2nd Appellant, he was nowhere near the Shatin KCR Station at about 12:30 p.m. when Mr Chou had his pocket picked.

6. In this appeal, the 1st Appellant was represented by Mr Cosgrove who did not appear in the Court below. The 2nd Appellant conducted his appeal in person. The only ground of appeal of substance is that the learned Magistrate should have recognised the inherent weaknesses in Mr Chou's identification of the culprits which was described to be no more than a fleeting glance by Mr Chou. The conviction, it was said, was unsafe and unsatisfactory. The 2nd Appellant adopted the 1st Appellant's grounds of appeal.

7. Mr Cosgrove submitted that the alleged theft took place at about 12:30 p.m. and it was not until after 4 p.m. that the matter was reported to the police. There was a lapse of some 3 1/2 hours and the judgment of Mr Chou must necessarily have been clouded with the passage of time. The learned Magistrate should not have attributed any special ability of recognition to Mr Chou. It was an identification which was flawed by the lack of spontaneity and also by the fact that it was no more than a fleeting glance.

8. It appears from his oral reasons and the Statement of Findings that the learned Magistrate had approached the identification evidence with care and caution. He concluded that the victim, Mr Chou, had ample opportunity to observe both Appellants when firstly, they travelled up the escalator and then very shortly afterwards, when the group of Filipinos confronted him at the concourse. Mr Chou was able to describe with considerable clarity the roles of the two Appellants in an area where lighting condition posed no difficulties whatsoever. He was able to tell the Court that he remembered the 1st Appellant had a necklace on him and wore a green cap while the 2nd Appellant was carrying a square-shaped bag on the day of his arrest. This was confirmed by the police officers who made the arrest. The learned Magistrate was obviously impressed with Mr Chou's ability to observe and to recall minute details and found him to be an accurate witness.

9. The issue of the case was clear and simple and it turned on the correctness of the identification by Mr Chou of the Appellants. All the apparent discrepancies and special features of the case had been highlighted to the learned Magistrate by two very experienced counsel at the trial. The learned Magistrate had taken into account the guidelines as set out in the case of Turnbull. The basis upon which the learned Magistrate found Mr Chou to be an honest, accurate and unmistaken witness cannot be faulted. Once so found, there is ample evidence for the learned Magistrate to find the charge of theft proved against both Appellants. Their convictions cannot be described in any way as unsafe or unsatisfactory.

10. The appeals against conviction are dismissed.