HKSAR v. SHURJ ABAN BEGUM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 112 OF 1998

(On appeal from SKC 7 of 1998)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant is a woman of previous good character in her 30's and had come to Hong Kong from Bangladesh on a business trip. On 6th January 1998, she appeared before Henry Ma Esquire in a Magistrate's Court sitting at South Kowloon on one charge of theft. She pleaded not guilty. But on 7th January 1998, she was convicted on that charge after trial. On the same day, that is on 7th January, she was sentenced to 9 months' imprisonment. She now appeals against both her conviction and sentence.

2. The point is this: if the Appellant did throw the wallet to the ground then that would lead inexorably to the conclusion that she had pick-pocketed the wallet. The Magistrate found that she had thrown the wallet to the ground. He so found on the evidence of PW1 and PW2. It is clear that PW1 did give evidence to the effect that she saw the Appellant throw the wallet to the ground.

3. As far as PW2 was concerned, however, she said only that she saw a right hand throwing something at a very high speed. Although pressed by prosecuting counsel to shed light on whose hand it was - and indeed she was asked by the Magistrate himself to whom the hand belong - PW2 insisted that she did not know.

4. When he came to his Statement of Findings, the Magistrate said on page 48 of the record that after hearing PW1 complaining that her wallet was lost, PW2 saw the Defendant throw out something very fast. That is a material misapprehension of the evidence of one out of two eye-witnesses on the most crucial part of the case. Perhaps the Magistrate would have convicted on PW1's evidence even if he had not thus misapprehended PW2's evidence. The question is whether I can safely and satisfactorily take that view.

5. In all the circumstances, I have come to the conclusion that I cannot safely and satisfactorily take that view. I might mention that Miss Mahomed for the prosecution quite properly conceded that there might be something in the appeal. The appeal against conviction is allowed so that the Appellant's conviction is quashed and her sentence is consequentially set aside.