HKSAR v. LO WAI LAM

HCMA 653/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 653 OF 1999

(On appeal from KTCC 1331 of 1999)

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J U D G M E N T

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1. The Appellant was convicted after trial before a magistrate at Kwun Tong Magistracy of an offence of Theft contrary to section 9 of the Theft Ordinance, Cap. 210. The Appellant appeals against that conviction.

2. The facts of the case as found by the learned magistrate were that on the charged date, the Appellant had snatched a wallet from a female victim (PW2 at trial) in the lift lobby outside her premises on the 22nd Floor of the particularised location.

3. Some few minutes before this, the victim's son (PW1 at trial) had come out from their flat into the same lift lobby on his way down from the building. A man he subsequently, some 12 days later at a police identification parade, identified as the Appellant asked him for a cigarette, and PW1 gave him one before getting into the lift and going down from the building. PW1 said he was curious about this man as a person who apparently made no attempt to get into the lift but remained in the 22nd Floor lift lobby.

4. Some few minutes later when PW2 came out into the 22nd Floor lift lobby, the Appellant approached her and attempted to snatch the wallet she was carrying. A struggle ensued, which lasted for what PW2 described as about 3 minutes but which the learned magistrate obviously found was in fact a lesser period of time, before PW2 dropped her wallet and the Appellant grabbed it and fled.

5. Acting on information, the police arrested the Appellant and the identification parade was held 12 days after these events.

6. At that parade, PW1 identified the Appellant as the man to whom he had given a cigarette. He looked at the parade for some 3 minutes before making this identification.

7. PW2, his mother, viewed the same parade and after saying it was either the Appellant or another person on the parade, then said it was the Appellant.

8. The substantial ground of appeal relied upon by the Appellant is that the conviction was unsafe as there was no sufficient evidence to support it.

9. In considering the identification evidence, which was the only evidence against the Appellant, the learned magistrate considered carefully the circumstances under which both witnesses viewed the Appellant at the scene.

10. It is true there was no mention in the evidence of the lighting conditions prevailing on the 22nd floor at 6:30 a.m. on the charged date in May when the incident took place. But PW1 gave clear evidence he had been standing face to face with the man and had lit the cigarette he had given him. His evidence was that he had a clear view of this person. PW2 said the man she identified had been looking directly at her before the struggle and that they were face to face during the struggle.

11. These matters were all considered carefully by the magistrate together with the weaknesses in the two witnesses evidence of identification, i.e. the length of time PW1 took to make his identification at the identification parade and PW2's initial uncertainty as to which of two people on the parade the thief was.

12. The learned magistrate warned herself clearly and expressly of the dangers inherent in identification evidence.

13. In short, she approached the evidence from a proper legal standpoint and considered those matters given in evidence which were relevant to the quality of the identification before proceeding to convict the Appellant.

14. She looked at the evidence of PW1 and PW2 as to identification as a whole and from it concluded, as she was entitled to do, that the Appellant had been the person PW1 had provided a cigarette to in the 22nd floor lift lobby and was the same person who had stolen PW2's wallet a few minutes later.

15. There can be no criticism in law of the magistrate's approach to the evidence. That evidence if accepted was more than sufficient to establish the Appellant as the thief. The Appellant was accordingly quite properly convicted upon this evidence.

16. I might add that the magistrate rejected the Appellant's alibi evidence which consisted of his mother's evidence to the effect he would have been home asleep at the time of the offence. She considered the inconsistencies in that evidence given both by the Appellant and his mother before rejecting it. Her rejection of this evidence was reasoned. It cannot be criticised.

17. The Appellant's appeal against conviction is dismissed.