HKSAR v. HONG YIU KUEN

HCMA 134/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 134 OF 2006

(ON APPEAL FROM KCCC 8090/2005)

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J U D G M E N T

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1.  The Appellant was jointly charged with another person with one charge of theft.  He was represented in the court below and after trial he was convicted of the offence.  He now appeals against his conviction.

2.  On the date of the offence which was 25^th December, Christmas day, Sergeant Wu, who gave evidence as PW1, was on patrol in plainclothes when his suspicions were aroused by the two Defendants at the trial.  He kept them under observation, and he noted that these two Defendants were looking constantly at the floor of the photo-taking booths in the shop, so he informed his two colleagues over his radio, and told them to guard the exit on the ground level.  He then saw the Appellant walk to a photo-taking booth which was covered by a curtain about half way down the entrance, and he saw the Appellant take a peep while the 2^nd Defendant was standing a foot behind him.  Then he saw the Appellant squat down, put his hand into the booth and took out a small blue handbag which was produced as exhibit P3.  He saw Appellant pass the handbag to the 2^nd Defendant who hid it underneath his jacket and walked to the exit and he saw the Appellant following the 2^nd Defendant.

3.  Sergeant Wu gave evidence that at the time of the observation he was inside a booth about 5 to 7 feet away, and he was observing this through a 2-inch gap.

4.  The Sergeant followed the Defendant out of the shop, and went to the ground floor.  He saw that his colleague had already stopped the Appellant.  His other colleague was chasing the 2^nd Defendant and then evidence was given that the 2^nd Defendant was subsequently arrested.  During the chase, the police officers saw the 2^nd Defendant drop the bag.  The bag was subsequently identified by the owner.

5.  The Sergeant was cross-examined by counsel for the Appellant.  The Sergeant said that his observation was not in anyway affected or blocked by any passer-by.  He said that he had a clear view of what he said the Appellant did. 

6.  At the close of the prosecution case, the Appellant elected to give evidence.  His evidence was that he had a quarrel on that night with his girlfriend, and then she left him, thinking that she might have gone to that shop in which the offence was committed, he went there to look for his girlfriend.  The Appellant said he looked around and he did not see his girlfriend but met the 2^nd Defendant with his girlfriend by chance.  So the 2^nd Defendant and his girlfriend helped him look for his girlfriend.

7.  Inside that photo-taking shop, he said there were many customers inside, and the Appellant said he was looking around and into each cubicle to see if his girlfriend was there.  And subsequently, he heard the 2^nd Defendant tell him: “Let’s go!”  He saw the 2^nd Defendant’s girlfriend walk away, he stayed behind to continue to search for his girlfriend. 

8.  He said he could not find his girlfriend and when he got to the street level, he was stopped by a plainclothes officer, and then subsequently, he was taken by the police to an alley where he saw the 2^nd Defendant with another police officer and he heard the 2^nd Defendant admit that the bag was stolen by him. 

9.  The Appellant said he was very angry and actually scolded the 2^nd Defendant and after the Appellant gave evidence, the 2^nd Defendant, also elected to give evidence, and basically he gave similar evidence as the Appellant.  The 2^nd Defendant admitted that out of momentary greed, he had picked up the handbag which was put on the floor of a photo-taking booth and that it had nothing to do with the Appellant.

10.  The girlfriend of the 2^nd Defendant was also called and she also gave similar evidence as both Defendants, but she did not see the 2^nd Defendant take the bag.

11.  The learned Magistrate on assessing the evidence found that the prosecution witnesses were truthful witnesses.  He rejected the evidence of the Defendants and their witness because he found them not to be truthful.  He also considered the circumstances of the observation by PW1.  By looking at the diagram drawn by the witnesses in exhibit P16 the learned Magistrate found that he had no difficulty accepting PW1’s evidence that he could indeed see what the Appellant was doing at the time.  He also considered the defence submission that the shop was crowded and that PW1’s observation would have been blocked by people passing-by. 

12.  The learned Magistrate considered that the action of the Appellant in squatting down and picking up the bag would have been very quick and so it would not be surprising that during that brief moment that no one would block the view of the police officer.

13.  The learned Magistrate found the defence’s evidence unreasonable and incredible.  He found that the reasons given by the Appellant for being in the shop not worthy of belief and he also did not believe the evidence of the 2^nd Defendant. 

14.  The learned Magistrate made the observation that it was very simple for the Appellant, if he is looking for his girlfriend, to have telephoned her rather than act in the strange way he did by looking around into the various picture booths in the shop, so at the end of the day the learned Magistrate accepted the evidence and observation of PW1 and convicted the Appellant.

15.  The Appellant, on appeal, is in person and basically his ground of appeal is that the police officers specifically PW1 was dishonest and lied and that he was not telling the truth about the observation, he also challenged the fact that the CCTV record in the shop was not produced and he suspected that this was deliberate in order not to contradict the evidence of PW1.

16.  This matter about the CCTV was explored in the court below and it was clear from the record that the Sergeant did go back to check on the CCTV record.  However, he did not feel that it was necessary to take it as an exhibit, and, therefore by the time of the trial, the record had been erased by the shop. 

17.  The learned Magistrate was aware of all that, but the learned Magistrate however was satisfied with the evidence as given by PW1.  The learned Magistrate did not accept that there was anything suspicious about what PW1 did in relation to the CCTV.

18.  I also note from the record that photographs were produced.  The learned Magistrate had photographs of the shop in front of him when he was considering the evidence. 

19.  Having read the statement of findings of the learned Magistrate and also the oral reasons of the learned Magistrate, it is clear that his finding of guilt against the Appellant was based on his finding that the prosecution witnesses were honest witnesses and reliable.

20.  I cannot see in anyway that the learned Magistrate was not entitled to make such a finding.  He heard the evidence, he was the best person to make this finding of fact.  There is no evidence, before the learned Magistrate, of the prosecution witnesses being dishonest in any way.  The loss of the CCTV record was explained and accepted by the learned Magistrate.

21.  So at end of the day, I do not find that there are any grounds to say that the learned Magistrate’s conviction was unsafe or unsatisfactory in any way.  There was sufficient evidence and ample evidence in front of the learned Magistrate for conviction, so the appeal is therefore dismissed.