HKSAR v. LUI FUK CHUEN AND ANOTHER

HCMA 317/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 317 OF 2006

(ON APPEAL FROM KCCC 797/2006)

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J U D G M E N T

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1.  The two Appellants were jointly charged with one count of Attempted Theft.  They pleaded not guilty and were convicted after trial.  They were sentenced to 2 years’ imprisonment.  They now appeal against conviction only.  Both Appellants were represented at trial, but each appeared in person on appeal.

2.  The prosecution evidence showed that the police observed the two Appellants on the night of a fireworks display at the junction of Salisbury Road and Middle Road.  One police officer (PW2) followed the Appellants.  He noted they appeared very nervous and saw that they were paying attention to the trousers pockets and back-packs of pedestrians.  The Appellants were followed as they walked into the crowd by PW2 who stopped about 1 foot behind them.  PW1, who was the intended target, was standing in front of the Appellants and PW2.  He had a shoulder bag on his right shoulder, the strap was across his chest and the bag rested on his left hip. 

3.  The officer saw the 2^nd Appellant speak to the 1^st Appellant.  The 1^st Appellant nodded and took off his jacket, placing it on his left forearm.  The 2^nd Appellant also took off his jacket, and placed it on his left forearm.  The officer then observed the 1^st Appellant walk close behind PW1 and lift his left arm and his jacket slightly.  He supported the bottom of PW1’s bag with his right hand and used his left hand to unzip about 2 inches of the main compartment.  At that point, the Appellant let go of the bag and lowered his hands.  PW1’s girlfriend turned around and looked to the left at that time.  Once she turned back to watch the fireworks display, the 1^st Appellant moved his left arm upwards and used it to touch the bottom of the bag again.  He used his right hand to unzip another inch of the main compartment.  The 1^st Appellant inserted about 2 sections of his right hand fingers into the bag then quickly withdrew his hand. 

4.  PW2 informed his team members that the bag had been opened.  At that time, he saw PW1 take his wallet out from the bag and place it on his person.  He saw no further action from either Appellant.  He decided not to arrest the Appellants until after the fireworks display concluded because there were too many people, including children, at the scene.  PW2 stopped PW1 the intended target of the pickpocketer to check his bag, but nothing was found to be missing.  PW1 confirmed that his bag had been fully zipped up when he stopped to watch the firework.

5.  The Magistrate considered the evidence of the prosecution witnesses.  It was suggested at trial that the police had been targetting one or both of the Appellants because they were known pickpockets.  The 2^nd Appellant’s criminal record was an Admitted Fact at trial.  This was denied by the officers and the Magistrate did not accept in any event that the Appellants were habitual pickpockets.  Various attacks were made on the evidence of the officers by counsel at trial.  Neither Appellant gave evidence or called witnesses.

6.  On appeal the 1^st Appellant complained that the Magistrate was unreasonable in accepting the evidence of the police officer.  He suggested that PW2, had given contradictory versions of what had happened.  He questioned how PW2 could see what was going on if he was directly behind PW1.  He submitted it was impossible for PW2 to see what he said he had seen.  Further, he contended that PW2 made an error, when at one point, he said that it was the 2^nd Appellant who unzipped the bag and not the 1^st Appellant.  I note that the Magistrate was aware of that occasion and that the matter had been rectified by the officer himself in the course of his giving evidence.

7.  The 2^nd Appellant told the Court that he believed the Magistrate erred in neglecting the victim’s evidence and that he had not taken into account the mistakes made by PW2.  The 2^nd Appellant also referred to the error made by PW2 in referring to D2 as D1.  He complained that the Magistrate could not rectify the mistake, just by saying it was a mistake.  He suggested that the evidence would have been stronger if the police had made an attempt to catch the alleged perpetrators red-handed.  He submitted that PW2 had fabricated the allegations against the Appellants.

8.  These matters were all raised before the Magistrate by counsel for the Appellants.  The Magistrate went through the evidence carefully and directed herself properly.  She noted the discrepancies in the evidence and resolved them.  She was satisfied that the witnesses were telling the truth and that they were accurate.  There is nothing before me to indicate that the Magistrate was wrong to convict in this case.

9.  Accordingly, these appeals against conviction are dismissed.