HKSAR v. SAR WAH

HCMA 395/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 395 OF 2008

(ON APPEAL FROM KTCC 416/2006)

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J U D G M E N T

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1. This is an appeal against three convictions for theft for which the appellant was sentenced to a fine of $100 on each charge.  I can do no better in setting out what the case is about than repeat the Statement of Findings of the magistrate because he succinctly sets out the facts and the issues and his conclusion:  

“The Appellant was convicted of three counts of theft.  He appeals against conviction.

2.  Most of the prosecution’s case was admitted under S.65C of the Criminal Procedure Ordinance (CAP. 221):

(a) A Mr. Tse bought a total of 41 horse racing tickets on 12 May 07 at the Hunghom HK Jockey Club Off-course Betting Centre in a sum of HK$3,054.

(b) Soon after he bought the tickets, he found them lost and he reported the lost immediately.

(c) From the claim form Mr. Tse filled in, it suggested that he bought the tickets at around 11:45 a.m. and he reported lost at around noon, i.e. 15 minutes later.

(d) On 13 May 07, the Appellant appeared in Kwun Tong HK Jockey Club Off-course Betting Centre, presented to the counter one of the 41 lost tickets (Exhibit P.1) and claimed for the winning dividen.  The Appellant’s request was turned down and he was asked to fill in a claim form. (Exhibit P.5)

(e) In the form (Exhibit P.5), the Appellant said “I bought unwanted matters bag from an old woman ……. for $35 and found it in the bag !!”

(f) On 19 May 07, the Appellant appeared in the same betting centre, presented another lost ticket (Exhibit P. 2) and claimed for the winning dividen.  His request was again turned down and he was asked to fill in another claim form (Exhibit P.6).  Again, he indicated that he picked up the ticket and he wanted to claim the proceeds.

(g) Finally, on 31 May 07, the Appellant appeared in Shamshuipo HK Jockey Club Off-course Betting Centre.  He presented the third lost ticket (Exhibit P.3) and claimed for the winning dividen.  Again, his request was turned down and he was asked to fill in a claim form, (Exhibit P.7) in which the Appellant said he picked the ticket up.

(h) The Appellant was operating a rubbish/unwanted matter business at the material time of the offence.

3. The Appellant elected not to give evidence nor calling any witnesses.  This court regarded that this was the rights of the Appellant and drew no adverse inference against him.

4. In reaching the verdict, this court reminded myself that the burden was on the prosecution to prove beyond all reasonable doubt that the Appellant was guilty.  Furthermore, court also had to consider evidence against each of the three charges.

5. It’s the defence’s case that the Appellant found these tickets amongst unwanted matters.  Whether or not he found the three lost tickets at the same time is unclear, yet the chances that he found them on different occasions is very remote, so much so that one could draw an irresistible inference that he found them at the same time.

6. It’s also clear that the Appellant realised that the three tickets were winning tickets and that’s why he proceeded to off-course betting centres to claim the winning dividens.

7.  The question is: Why didn’t the Appellant claim the dividens of these three tickets in one go?  Why should he do it on three different occasions and at two different centres?

8. The answer is obvious: The Appellant fully realised that these tickets belonged to another person.  He also realised that these tickets had monetary value and in fact no different from hard cash.  Therefore, he tested the water by claiming one ticket at a time, and by approaching different centres.

9. The only inference is: The Appellant fully realised that he was not entitled to claim the dividens and he was therefore dishonest when he did so.  I therefore found him guilty of all three charges.”

2. As I have explained to the appellant, who appears in person in front of me today, no one suggests this was a very grave crime but it is not honest, it is dishonest, to take and use property belonging to someone else when one knows they would want it back themselves and they could be traced, in this case, through the Jockey Club and that is why, in effect, there was dishonesty here.  There were clearly appropriations when the appellant presented the tickets on the three different occasions. 

3. Whilst the appellant has addressed me very nicely and made some points to me about the nature of his work and business, I find that the analysis by the magistrate was faultless and I agree with it. The presentation of the those tickets at different times and places amply proved the subjective element of dishonesty. Accordingly, the appeal against conviction has to be dismissed.