HKSAR v. WONG LIN KAY

HCMA 316/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 322 OF 2009

(On appeal from STCC7905/2008)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial by Ms Annie Lai,  Deputy Magistrate, of going equipped for stealing contrary to s. 27(1) of the Theft Ordinance, Cap. 210, and sentenced to undergo imprisonment for one month, which was suspended for a period of two years. He appealed conviction. At the conclusion of the hearing I allowed the appeal and indicated that I would give my reasons later: these are they.

2.  At around 3.12 a.m. on 3 September 2008 a group of police officers patrolling in a private vehicle along Sai Sha Road, Sai Kung, saw the appellant riding his bicycle into a parking area for vehicles. This apparently aroused their suspicions. They drove on, turned their vehicle and drove back in the direction from which they had come. They saw the appellant further along the road, still riding his bicycle. At 3:15 a.m. they intercepted him at the entrance to a village. He was out of breath and indicated he needed to drink water.

3.  He was searched. Two adjustable spanners were seized from a small bag which he was carrying. He was asked why he had these with him: it was an admitted fact that he made no reply yet when he gave evidence he testified that he had said that he carried them for use in connection with his bicycle. Mr. Surman, who appeared for the appellant both here and below, realistically recognised the conflict. The relevant factor is that the prosecution's case is predicated on the basis that the appellant said nothing at this early stage.

4.  The appellant was asked to accompany the police back to the car parking area, which he agreed to do. Vehicles parked there were examined: nothing untoward was found. PC 33736, the sole prosecution witness to testify at the trial, decided at 3:28 a.m. to administer a caution to the appellant for the offence of going equipped for stealing. He testified that the appellant, despite having been fully cooperative yet silent as to the reason for his possession of the spanners since his interception some 13 minutes earlier, responded "Sir, regarding my two spanners, I intended to see if there would be any road signs which could be removed from the roadside to help meet family living expenses. Can you give me a chance?", thereby neatly encapsulating the essential elements of the offence with which he was subsequently charged.

5.  PC 33736 then arrested the appellant. He did not see fit to make an immediate record of the response to his caution, notwithstanding the fact that there were at least two other police officers in the car parking area, that it was quite clear that there was more than adequate lighting for him to have done so and that the appellant had been entirely cooperative. Instead, the appellant was taken back to Ma On Shan police station where a record was made and signed by the appellant.

6.  The appellant disputed having replied to the caution in the manner attributed to him or at all. The magistrate followed the alternative procedure in which the appellant testified. In the course of his testimony the appellant explained that he had signed the record of what he was alleged to have said under caution without it being read to him and without reading it: he had not read it, he said, because he did not have his spectacles which made it difficult for him to read. He had signed in various places, he said, because he had been told that this was merely a formality and that once it had been completed he would be granted bail. This was his first experience of being stopped by the police.

7.  The appellant adduced in evidence a medical report from an ophthalmologist which showed impairment to his visual acuity as well as a right eye retinal hole which the ophthalmologist suggested be treated surgically to prevent retinal detachment. In the course of cross-examination by the prosecutor, when she was addressing whether the appellant understood what he had been reading when affirming prior to testifying, the magistrate had interjected and suggested to the appellant that he had not used spectacles when reading the affirmation: the prosecutor took up the refrain but the appellant then pointed out that he had asked for assistance when reading the affirmation. There was an exchange between the magistrate and Mr. Surman as to whether this had actually occurred which concluded with the magistrate saying "All right. I don't think this is a very important point anyway, so can we move to another issue?". As a result, this issue, which plainly was material, was not clarified. This is particularly unfortunate in view of the fact that the magistrate relied upon the fact that "Notably that, [the appellant] did not wear any glasses when he had to read the oath in court" when resolving, against the appellant, the issue relating to the admissibility of the alleged admission.

8.  Be that as it may, the magistrate admitted the alleged admission in evidence. She regarded the appellant has having taken "... a rather unscrupulous and casual attitude over the signing of the notebook". The appellant testified on the general issue. The magistrate disbelieved his evidence and convicted him.

9.  As this is an appeal from a magistrate, it is a retrial before me on the evidence which was before the magistrate: I am required to make my own decision based on that evidence, it not being a question of whether the magistrate was right or wrong or whether I agree or disagree with the view taken by the magistrate.

10.  There are a number of unusual features in the evidence which must create real doubt as to whether the appellant gave the response claimed. They follow, in no particular order:

10.1  the appellant is 49 years of age and, at the time of the offence, had no previous convictions;

10.2  his unchallenged evidence was that he is a civil servant who had been employed since 1996 by the Agriculture, Fisheries and Conservation Department. He is married: his wife is employed. He has two daughters, one of whom is studying in the United Kingdom whose studies are funded by his brother;

10.3  he has no mortgage or rental liability: his monthly income is some $14,000 whilst his wife earns a further $2000 monthly: he has no financial problems. This was not challenged by the prosecutor and is completely at variance with the suggestion that he had said that he was stealing road signs to help with his family living expenses;

10.4  despite the resistance of the sole prosecution witness to accept that none of the road signs visible in a wide range of photographs taken in the vicinity where all these events are said to have occurred would have fitted in the small shoulder bag being carried by the appellant, it was plain that that was so. I am not prepared to speculate as did the magistrate that the appellant may have intended to conceal them in his car - although he was riding a bicycle - or to secrete them for later collection: there is simply no evidence to support that;

10.5  there was plain evidence led by the appellant and supported photographically, most of which was reluctantly accepted by the prosecution witness, that the height of the road signs was substantially beyond the reach of the appellant, a man of no more than average height. It was accepted that he was not found in possession of a ladder or anything which would have been of assistance to him in reaching the signs;

10.6  the basis of the police officer’s suspicions as to the conduct of the appellant seems to have been that he was riding his bicycle in the early hours of the morning and was seen to ride into a car parking area. After the police had turned their vehicle and retraced their steps, not more than three minutes later they found the appellant still riding his bicycle along the road in his original direction of travel some distance from the car parking area. Given the extremely short period of time that had elapsed and the fact that the appellant was some distance away from the car parking area and still riding, facts which are plainly inconsistent with nefarious activity in the intervening period, it is difficult to see why his conduct should have been regarded, in the first place, as suspicious;

10.7  he lived within comfortable cycling distance of where he was intercepted;

10.8  on the prosecution case, the appellant had not said anything about his purpose for possession of the spanners for some 13 minutes after his interception. He then gave a comprehensive reply and asked for a chance, according to the police officer;  and

10.9  the explanation tendered by PC 33736 for his failure to record the appellant's alleged response to the caution at the scene is weak, variable and unconvincing.

11.  It is self-evident that without the alleged admission there could have been no conviction. This much was realistically appreciated by Miss Fan who appeared for the respondent.

12.  The appellant’s evidence was of poor quality but looking at the evidence as a whole I certainly could not be satisfied beyond reasonable doubt that the appellant had made the admission attributed to him.

13.  Ms Fan sensibly accepted that she could not object to an application for costs here and below by the appellant, which I consequently granted.