THE QUEEN v. HUNG CHUN FUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 471 of 1984

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REASONS FOR JUDGMENT

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1. The appeal having been allowed I now set out my reasons: -

2. In this case the appellant, a 15 years old boy, was jointly charged with two other boys of the offences of attempted theft and going equipped for stealing.

3. In the first charge it was alleged that these two other boys and the appellant on the 14th April 1984 at Kong Kee Store, outside 101 King Fuk Street, San Po Kong, Kowloon, in this Colony, attempted to steal therein.

4. So far as the second charge is concerned it was alleged that these two boys and the appellant on the 14th April 1984 at Kowloon in this Colony, not being at their place of abode, did have with them articles for use in the course of or in connection with theft, namely three pieces of saw, one wire-cutter, two iron-bars.

5. The history of this case is somewhat strange in that the record shows that on the 8th May 1984 the appellant and his two co-defendants appeared before a Magistrate and admitted the charges they were facing. However whilst the other two defendants were remanded pending reports, the 3rd defendant (the appellant in this case) had his case set doom for trial in the Juvenile Court.  He duly appeared before the Magistrate in the Juvenile Court on the same day and the matter was adjourned for hearing on the 5th June. On the 5th June, a note was made on the record of the Magistrate indicating that the not guilty plea of the appellant was maintained.  The case was then heard.  Three witnesses gave evidence for the prosecution and the appellant gave evidence in his defense.

6. Now the facts in respect of both charges were identical.  The main witness was Mr. Kong Hak-shing, the proprietor of the Kong Kee Store outside No. 101 King Fuk Street, San Po Kong.  He testified that on the 13th April he closed the store between 9 and 10 p.m. and returned home for dinner. Because of the prevalence of theft it was usual for him to return to the store and sleep there after having his dinner.  He duly went back to the store having left his home about 11:30 p.m. and arrived at the store at about mid-night.  He described how he saw a bicycle when he looked across at the store from some 30 yards distance.  He walled forward and three boys came out from the refrigerator which is in his store. He testified:

"I used to place it there all the time. I locked everything up.  The refrigerator is within the store.  The boys had used big scissors to cut the four padlocks.  I saw those scissors at the store at 12 mid-night. I went right up to the store. Before I reached the refrigerator they left. I got up to 10 odd yards - a bit closer than the width of the Court (25 feet).  The light was very bright. Everything was illuminated. I had a good look at the three boys.   I gazed hard at them. I saw them running into the street near Block 1 of the Government Building. I see one of that group in Court, the youngest. (Defendant identified). Later he said when shown one wire-cutter, three blades and two pieces of iron exhibits P1, 2 and 3 respectively these are the things I picked up on the ground near the bicycle."

 

And later in cross-examination when asked about the cutters and blades exhibits P1 to 3, and when he was asked how far they were from the refrigerator his answer was "beside the store". He also admitted under cross-examination that he did not see any one actually handling the exhibits.

7. The learned Magistrate summarised the evidence of the 1st witness in this way:

"As he approached his store he saw three boys running away from his refrigerator.  He was able to see them clearly.  The youngest of the three was the appellant whom he recalled wore red slippers and had glasses.  The padlocks securing the store had been cut and PW1 saw big scissors (wire cutters) by the store. He asked a watchman to call the police."

 

8. The learned Magistrate summarised the evidence of the other two witnesses in this way:

"PW2 was PC239030 Tin Sai-fung. He testified that acting on instruction received at 12:01 on the night in question, he and the colleague PW3 went to King Fuk Street and saw three boys walking towards San Pd Kong Magistracy.  On seeing the police officers the boys turned as if to run into the park next to the Magistracy. PW1 stopped them (That must mean PW2) the appellant was one of the boys.  The three boys were the only ones in the vicinity.  They were taken back to the stall and PW1 confirmed that they were the three boys whom he had seen at his stall. PW3, PC22606 Yuen Kai-keung corroborated the evidence of PW2 except that he could nor remember what the appellant had been wearing."

 

9. It is clear that the Magistrate did not believe the evidence of the appellant that he was not one of the three boys who had been at the scene.

10. Mr. Lau for the appellant raised a number of grounds for appeal but the only one which I need mention is ground 2:

"there was insufficient evidence according to the Statement of Findings to warrant a conviction of attempted larceny, for the evidence of PW1 shows that although he had identified the appellant as one of the three persons running away from the scene and then had lost sight of him, there was no evidence to show that the appellant had taken part or participated in the attempt."

 

11. As I understood Mr. Lau's submission, it was that assuming that everything which had been said by PW1 was absolutely correct, there was not sufficient evidence upon which to found a conviction.  I did not agree with him. However what concerned me in this case was that the learned Magistrate had found the appellant not guilty in respect of the charge of going equipped for stealing. Now it is clear from the evidence that the going equipped for stealing charge related to the possession of the various exhibits mentioned, immediately before the attempted theft was carried out.  What the Crown was seeking to do was to ask the Magistrate to draw an inference from the subsequent events as seen by the three prosecution witnesses and the close proximity of the exhibits and the fact that the padlocks had been cut that the defendant was in joint possession of the exhibits immediately before the attempted theft and was then jointly attempting to commit theft.

12. If the appellant was not guilty of going equipped for stealing, then it was difficult to see now he could be guilty of attempted theft because both charges depended upon exactly the same facts.

13. In these circumstances I allowed the appeal and set aside the conviction and sentence.