HKSAR v. LAM WAI HUNG

HCMA 116/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 116 OF 2001

(ON APPEAL FROM TMCC 2766/2000)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy of one charge of Theft and sentenced to 6 months imprisonment. He originally appealed against both conviction and sentence, but he advised the court today that he wished to abandon his appeal against sentence.

2. The facts of the case were that the Appellant was a salesman who dealt with a customer buying furniture from his proprietor. $100 deposit was paid by the customer and a receipt was signed and issued. When the customer came back to pay the balance of the price the following day he paid the money to the Appellant, however, the receipt was not signed for the further amount. About a week later the customer complained that the money had been paid and a search revealed that the proprietor had not received it. The case was reported to the police.

3. The case turned on whether or not the receipt was signed by the proprietor to acknowledge receiving payment, as was the practice. In evidence, the Appellant said he did not dare to ask the proprietor to sign the receipt, although he handed over the money to him, because the proprietor was drunk at the time.

4. There was no dispute that the money had been handed over by the customer to the Appellant. The only question for the Magistrate to decide was whether or not the money had been handed on to the proprietor by the Appellant.

5. The Magistrate found that the proprietor was a truthful witness and excluded the likelihood of his having forgotten that the money had been paid over by the Appellant.

6. The Appellant's main ground of appeal is that the proprietor's wife was a crucial witness and, according to him, the prosecuting counsel and his own counsel had agreed not to question her about events on 19 June which was the relevant date. He said he told the Magistrate he gave the receipt to the proprietor's wife and could not understand why she said that he did not give it to her. He also complained that other documents were unsigned in the course of the business and that to accept the unsigned receipt as an indication of his guilt was unfair to him.

7. I consider that on the facts of the case, this was a matter for the Magistrate to decide. Having considered the witnesses' evidence and having made up his mind as the credibility of those witnesses, he found the proprietor a truthful witness and the Appellant was convicted. There is nothing that the Appellant raised before me today which indicated the Magistrate was at fault in dealing with the matter in the way that he did. The appeal against conviction is dismissed.