HKSAR v. TSANG KAM PUI

HCMA53/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 53 OF 2011

(ON APPEAL FROM TMCC 3147 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  The appellant, who appears in person, appeals against his conviction after trial on 13 December 2010 by Mr Smout in Tuen Mun Magistrates’ Court of the offence of going equipped to steal on 18 September 2010, contrary to section 27(1) of the Theft Ordinance, Cap. 210. He filed a notice to appeal against conviction on 23 December 2010. He was released from custody, having served his full sentence with remission, on 10 April 2011. From the papers available to the court it appears that the appellant applied for the grant of legal aid on 23 December 2010. However, that application was not determined, by a notice of refusal, until 1 March 2011. On the following day, the appeal was listed for hearing on 15 April 2011 and the appellant so advised through the Commissioner of Correctional Services. At the hearing, the appellant informed the court that he had not made an application for bail pending the hearing of the appeal. He did not know that he had the right to do so.

The Charge

2.  The charge alleged that on 18 September 2010 outside the Yan Oi Tong Madam Lau Wong Fat Primary School, Siu On Court, 2 Tuen Hing Road, Tuen Mun, that not being his place of abode, he had with him in connection with theft five screwdrivers, one hammer, two cutters, one pair of pliers and four hexagon keys.

The trial

3.  The prosecution case at trial was that the appellant had been observed by PC33999 at 01:50 a.m. outside Liu Cheong Kwong Secondary School pushing a cart on which there were two cardboard boxes.  Then, he was seen to enter an adjoining construction site, China Harbour, carrying a bag over his shoulder.  When he re-emerged from the China Harbour construction site he moved on with his cart to the Yan Oi Tong Madam Lau Wong Fat Primary School, where he was seen twice attempting unsuccessfully to climb over a wire mesh perimeter fence, again with the bag over his shoulder.  Then, he returned to his cart, moved on a little way, where he was stopped by police officers. The bag was found to contain the items the subject of the charge.

4.  The appellant testified at trial.  He said that he lived nearby to the primary school and that he had been looking for waste, including cardboard.  It was his habit to collect cardboard and sell it. It was only after he had left home that he realised that a bag containing tools was in one of the cardboard boxes.  He denied having entered the construction site or having attempted to climb over the wire perimeter fence.

Statement of Findings

5.  The magistrate stated that he accepted the evidence of PC33999, in particular finding that he was satisfied that there was adequate street lighting for him to have been able to see the appellant conduct himself in the way in which he testified.  He rejected the appellant’s testimony to the contrary.  He was satisfied that the appellant had entered the construction site and attempted to climb over the wire perimeter fence whilst in possession of the bag containing the tools.  He stated that he found it to be the only reasonable inference from the evidence that the appellant had those tools within because he intended to use them in connection with theft.

Grounds of appeal against conviction

6.  The appellant’s grounds of appeal against conviction are those set out in Form 101 of the Magistrate’s Ordinance, Cap. 227.  Of relevance to the appellant’s case is the bare contention that the conviction was against the weight of the evidence.  At the hearing of the appeal, without objection from the respondent, the appellant was permitted to produce fresh evidence, namely photographs of the locus in quo, in particular, photographs that evidenced the height of the wire mesh fence outside the primary school.  Standing on a lowrise stonewall, the appellant was depicted as able to reach the top of the wire fence with his outstretched hand and arm.  The appellant’s contention was that was not a fence that he would have failed to climb.  Also, the appellant contended that at trial the evidence of PC33999 was that the appellant had been seen climbing out of the secondary school.  If so, he asked directly, why was he not arrested immediately.

A consideration of the submissions

7.  In light of the appellant’s challenge to the accuracy of the magistrate’s summary of the evidence of PC33999, in respect of his first view of the appellant, the court had the audio tape of most of his evidence in chief played in court.  PC33999 did not testify that he saw the appellant climbing out of the secondary school.  Rather, he said he first saw him outside that school, after which the appellant had pushed his cart to the construction site, which he then entered.  Also, PC33999 testified that in attempting to climb the wire mesh fence outside the primary school, the appellant had first climbed onto a lowrise wall before failing in his two attempts to climb the fence.  That was the point that the appellant sought to make by the production of photographs in this court.  It follows that, even without the benefit of photographs, the magistrate was seized of that point.

8.  Having had the benefit of receiving directly the evidence of PC33999 and the appellant, the magistrate was well-placed to resolve the direct conflict in their testimony and determine issues of credibility.  The appellant’s account, in effect, of being accidentally in possession of the array of tools was inherently improbable, as was his testimony that he was scouring for waste products in the middle of the night.  The magistrate was clearly entitled, as he stated he did, to reject that evidence as not being credible and to accept the evidence of PC33999.  There is nothing in the points that the appellant has sought to make in his oral submissions to the court today.

Conclusion

9.  In the result, the appellant’s appeal against conviction is dismissed.

10.  Clearly, it is most unsatisfactory that an appeal against conviction be listed to be heard only after the anticipated release date of the appellant, notwithstanding the fact that the instant appeal has been dismissed.  It is to be noted from the papers available to the court that the basic appeal bundle was sent by the Registrar to the Legal Aid Department on 20 January 2011.  Enquiries as to the position of the Legal Aid Department were sent by the Registrar on 7, 21 and 28 February 2011. Although each one met with a prompt response from the Legal Aid Department, the matter was not determined until 1 March 2011.  Accordingly, I direct that a copy of this judgment be served on the Director of Legal Aid and the Chief Judge of the High Court.