HKSAR v. AMPOFO, MOSEN ANTI

HCMA 11/2026

[2026] HKCFI 2482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 11 OF 2026

(ON APPEAL FROM KCCC 1690 OF 2025)

______________________

______________________

_______________

J U D G M E N T

_______________

Background

1.  The Appellant was charged with 1 count of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210. It was alleged that on the 3rd day of July 2025, at Staircase near 10 Knutsford Terrace, Tsim Sha Tsui, Kowloon, in Hong Kong (the “Location”), the Appellant did steal one black iPhone 16 Pro Max mobile phone (the “iPhone”), the property of LI Yee-ching, Emily (“PW”).

2.  The Appellant, represented by a duty lawyer at the trial, pleaded not guilty to the charge. He was convicted after trial and sentenced to 16 months’ imprisonment.

3.  The Appellant now acts in person and appeals against his conviction.

Trial

4.  At the trial, it was not in dispute that[1] the Appellant appeared in the CCTV footages (Exhibits P2 & P3) at the Location. It was in dispute that the Appellant was the one who stole the iPhone of PW.

5.  The prosecution[2] called PW to testify. Her evidence was summarized by the Respondent as follows.

6.  PW and her friends went drinking and left Knutsford Terrace at around 0200 hours. PW and her male friend accompanied her drunk female friend. PW confirmed her iPhone and her female friend’s phone were with her when she started sitting at the Location with her friends. PW and her friends sat at the Location from around 2 am to 5 am, during which she viewed her iPhone on and off, then placed it on the ground next to her. When she was seen using a phone as shown on the footage, she confirmed she was using her iPhone because she could not unlock her female friend’s phone. A lady from the bar came to them and reminded them to keep an eye on their personal belongings, and then PW noted that her iPhone had gone missing. Her male friend called her mobile phone number but her iPhone was already switched off.

7.  It was put to PW that: (i) she stated in her witness statement that 5 of them had consumed 3 bottles of whiskey that night; and (ii) she did not really remember what had happened. In relation to (i), PW testified that others drank a lot but she did not. She was neither heavily intoxicated nor very drunk. She was basically sober; (ii) PW explained that the statement was taken between 5 am to 6 am. She denied she was so drunk that she could not even walk or stand properly. She was at that time wearing heels of 10 cm tall, and her feet were not very steady.

8.  PW recalled that in fact a male and a female staff member went to them. She could not remember this bit clearly when she gave evidence in court because the incident took place months ago.

9.  After PW found that her iPhone had gone missing, she became panicked, tapping everywhere and trying to look for it. She had patted the male friend’s pocket. She agreed that she did not see the Appellant taking her iPhone away.

Defence Case & Closing Submissions

10.  Having ruled there was a case to answer, the Appellant elected not to give evidence nor called any defence witnesses.

11.  The defence submitted that the CCTV footages could show that PW was heavily intoxicated and she was uncertain as to where exactly she had put her phone and her female friend’s phone. Even if PW was certain and the Appellant appeared to have picked up something, the CCTV was not clear whether he had actually taken away something.  If the Appellant had indeed taken the iPhone away, the light reflection should have been on his front, not on his back and buttock. There was also a possibility that PW’s male friend had taken PW’s iPhone away.

Findings of the Magistrate

12.  The magistrate found that PW’s evidence was, in general and in particular on material aspects, consistent with what was depicted in P3. That included the drunken status of her female friend throughout, PW had been using her iPhone on and off, PW last put her iPhone behind her, PW had been keeping watch of her female friend’s phone, PW discovered her iPhone had gone missing when a female staff member approached PW.

13.  The magistrate then dealt with the defence’s challenges of PW’s evidence:

“16. As to the defence’s challenge that she was heavily intoxicated that material night and had shown her several times she was seen almost tripping over/fallen down on stairs on Exhibit P3, her answers that she did drink that night hence her feet weren’t very steady and because it was very dark and she was wearing heels weren't unreasonable. In fact, Exhibit P3 showed clearly that many passersby walked passed had turned on the illumination on their phones to light the way as they walked and it clearly showed that PW was wearing a pair of high platform shoes. Also, in those 2 to 3 hours footage, one can clearly see that PW during the whole period chatted with the male friend and the staff, smoked cigarette, played with her phone and drank from a can. There was no sign that she was heavily intoxicated. As to PW’s mistaken recollection that it was a female, as opposed to a male staff member who went over to her at a particular time, the entire footage showed that in fact at an earlier time i.e. 04:27:08 of Exhibit P3, a male staff member did in fact went over to chat with her and her male friend. Given the long duration of time she spent there and it was dark throughout, I consider that such mistaken recollection of one single immaterial matter would not affect her overall credibility and reliability. Further, her reaction of patting the male friends’ pockets after she realized that her phone had gone missing did not in any way suggest that she was doubtful if the male friend had taken away her phone. Her answer that she was panicking when she found out her phone was gone and she would have patted anyone near her does not sound entirely incredible. In any event, having perused the footage carefully, one can be sure that at no point PW’s phone was taken away by the male friend. As referred to in the Annex, PW had on 4 occasions passed her phone to the male friend briefly to show him the screen of the phone but every time the phone was returned to PW. Apart from those 4 occasions, the male friend had not touched PW’s phone.”

14.  In consideration of all the circumstances, the magistrate accepted PW as a credible and honest witness, therefore, accepted her evidence and gave her evidence full weight.

15.  The magistrate summarized her observations of P3 which included:

(a)  at 03:51:15, the Appellant walked past PW for the first time and observed;

(b)  at 04:07:28, the Appellant returned to the Location, walked past PW, and observed for the second time;

(c)  at 04:33:18, PW picked up her iPhone and used it. At the same time, PW’s female friend’s phone was flashing on the ground (right rear to PW);

(d)  at 05:06:55, PW put down her iPhone at the right rear as well;

(e)  at 05:07:15 (20 seconds later), the Appellant walked up the stairs for the third time on the left and his right hand was holding a bottle;

(f)  at 05:07:17, the Appellant swapped to hold the bottle with his left hand. His right hand was empty;

(g)  at 05:07:24, the Appellant bent down and extended his right hand to pick up something from the ground, which was the exact spot where PW put her iPhone and her female friend’s phone, and left;

(h)  at 05:07:25 (1 second later), the Appellant left and held something in his right hand; and

(i)  at 05:08:24 (1 minute later), the female staff member came over, picked up the female friend’s phone, stood still with flashing lights on, and passed the aforesaid to PW. PW then realised her iPhone had gone missing.

16.  Along this chronology, P3 showed that no one except the Appellant had walked close to PW and her friends, and picked up something from the ground. Other passers-by simply walked straight without pausing. More importantly, there was only a 2-minute gap between the moment where PW last put her iPhone down on the ground and the moment where PW realized her iPhone went missing, and during which no one except the Appellant came by PW.

17.  The magistrate addressed the defence’s challenge in relation to the light reflection, and found the challenge unsustainable. The defence argued that if the Appellant had indeed picked up PW’s iPhone, the light reflection should not have been on his buttock. On top of PW’s iPhone, PW’s female friend’s phone was also placed at the same right rear spot on the ground. Thus, even the Appellant had picked up PW’s phone, the light reflection could and must have come from the female friend’s phone, which was still flashing on the ground. This was consistent with the footage immediately afterwards where the female staff member picked up the female friend’s phone and the light on it was still flashing.

18.  In light of the above, the magistrate reached the conclusion that the prosecution had proved beyond reasonable doubt all the elements of the offence and the only irresistible inference was that it was the Appellant who had stolen PW’s iPhone when he walked past PW on the third occasion.

Grounds of Appeal

19.  The Appellant filed Notice of Appeal to a Judge against Conviction in Form 101 on 24 December 2025. He provided grounds of appeal in his letters dated 15 and 19 January 2026. Besides, he submitted another letter at the appeal hearing.

20.  The Respondent considered that the Appellant’s major complaint was that the magistrate erred in concluding that there was sufficient evidence to prove beyond reasonable doubt that the Appellant had committed the present crime (the major complaint)[3]. His complaints could be further boiled down to the following grounds of appeal:

1)  Ground 1: The magistrate erred in failing to consider the defence case that the Appellant did not commit the theft[4];

2)  Ground 2: The magistrate erred in finding that the Appellant had committed the crime based on the evidence of PW and CCTV footages[5]; and

3)  Ground 3: The magistrate erred in finding that the Appellant was the offender[6].

The Respondent’s Submissions

21.  The Respondent submitted that she would first respond to Ground 3, followed by Ground 2, and lastly Ground 1.

Ground 3

22.  The Appellant was legally represented during the trial. The Appellant’s identity was not an issue at the trial; hence, the magistrate was correct to find that the Appellant was the offender in the present case, despite PW not having witnessed the Appellant taking her iPhone.

Ground 2

23.  The magistrate had considered all circumstances of this case, including P1 to P3, and the evidence of PW, carefully, thoroughly and holistically. She had even prepared a chronology annexed to the Statement of Findings[7].

24.  The magistrate compared PW’s evidence[8] with the undisputed P3 on the material aspects of the incidents. She closely examined the defence’s challenges on PW’s evidence in cross-examination. Given that the undisputed P3 corroborated PW’s evidence generally and materially, also, PW was able to offer reasonable explanations to the defence’s challenges, the magistrate was entitled to find PW as a credible and honest witness, and thereby, accepting and giving full weight to her evidence.

25.  The footages clearly showed that PW put down her iPhone at her right rear at 05:06:55. At 05:07:17, the Appellant emptied his right hand and walked up the stairs at the Location. At 05:07:24, the Appellant extended his right hand to pick up something from the exact spot where PW placed her iPhone and her female’s friend phone. At 05:07:25, the Appellant left with something holding in his right hand. At 05:08:24, the staff came over and picked up the female’s friend phone, then PW realized her iPhone had gone missing.

26.  The magistrate had also addressed the defence’s challenge on the direction of light reflection. The analysis of the magistrate was logical and reasonable, and backed by undisputed P3.

Ground 1

27.  The magistrate, with reference to the undisputed P3 and evidence of PW, had, logically and clearly, responded to the defence’s closing submissions point by point. The magistrate had addressed the issues in relation to level of drunk status of PW[9]; the spot where PW had placed her iPhone and her female’s friend phone[10], the Appellant had taken something away when he bent down and left with his right hand holding something on the third occasion he walked past PW at the Location[11]; and the direction of the light reflection[12]. As such, the magistrate, after considering all the circumstances carefully, was entitled to conclude that the defence’s case was untenable.

28.  The magistrate had clearly reminded herself that one must not assume the Appellant was guilty because he had not given evidence[13]; correctly pointed out that there was no obligation on the Appellant to prove his innocence and the burden of proof was always on the prosecution; did not convict the Appellant because he had not given evidence.

Major Ground

29.  The magistrate, bearing in mind the relevant legal principles, considered all the evidence fully, holistically, and fairly, then concluded that the court would attach full weight to PW’s evidence given her credibility and reliability. On the other hand, the defence’s case was untenable. The magistrate held that the prosecution had proved beyond reasonable doubt all the elements of the offence, thereby, convicting the Appellant. The conviction on such basis was neither unsafe nor unsatisfactory.

Discussion

30.  The Court of Final Appeal in HKSAR v Hui Lai Ki [2024] HKCFA 7 held that an appeal under section 113 of the Magistrates Ordinance is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. The Court held that on such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict. The Court recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Despite those limitations it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

31.  I have considered the CCTV footages which were played in court. I agree with the magistrate’s descriptions of the images which she outlined in the Annex.

32.  Turning to the Appellant’s grounds of appeal, it is noted that what the Appellant argued at the appeal hearing has been raised by the duty lawyer Mr Yu. In his closing submissions,[14]Mr Yu emphaised that PW was heavily intoxicated; the CCTV did not show what kind of thing the Appellant had picked up from the ground; the light reflection; whether it was PW’s male friend who had taken the mobile phone away at footage 05:24:26.

33.  I have carefully considered the Statement of the Findings. Doubtless to say, the magistrate was very much alive to the challenges raised by the defence and she had properly dealt with each and every challenge raised. In assessing the evidence of the case, the magistrate applied the correct legal principles, and the reasons she gave to resolve the issues were sound and supported by the evidence of the case.

34.  In respect of the Grounds of Appeal, I say nothing more than that I agree with the Respondent’s detailed written submissions. There is no merit in the grounds of appeal against conviction.

35.  By way of rehearing, I am satisfied that the prosecution had proved all the elements of the charge beyond reasonable doubt, and that it was the Appellant who had stolen the iPhone from PW. The appeal is therefore dismissed.