HKSAR v. HERENCIA RODRIGUEZ JULIO ALBERTO

HCMA801/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 801 OF 1998

(On Appeal from SKC 2345 OF 1998)

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J U D G M E N T

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1. The appellant, Rodriguez Herencia, a Pervian national, appeals against his conviction on 5 August of this year by Mr Alan Wyeth, Permanent Magistrate sitting at South Kowloon Magistracy, for two offences of theft. Mr Wyeth, after trial convicted the appellant and sentenced him to serve 15 months' imprisonment in respect of each offence, to be served concurrently. I have yet to deal with his appeal against sentence.

2. At trial the appellant was represented by counsel provided by the Duty Lawyer Scheme. He testified on his own behalf and call a witness.

3. In brief, the prosecution's case against the appellant was that he was one of a group of three men who were in the coffee shop of the Pearl Seaview Hotel in Shanghai Street, Yau Ma Tei, in Kowloon West. While confusion was caused by this group of men he, or one of them, snatched handbags belonging to two customers in the coffee shop. The appellant's defence essentially was that he had been falsely accused.

4. Before me this morning he raises matters that were not raised at trial before Mr Wyeth. These being that the two victims of the thefts assaulted him and were also drunk. He also says that a closed-circuit video TV surveillance camera tape would show the true course of events. At the trial no application was made to adduce evidence of anything shown on the Hotel's closed-circuit television surveillance recording device, and no mention was made at trial of the victims being drunk or assaulting the appellant.

5. I have listened carefully to all that the appellant has said and I have taken into account that there may be some diffculty in communication because his native language is Spanish, not English. I have also read the transcript of the proceedings before Mr Wyeth.

6. As the prosecutor before me says, this was a case that revolved around the credibility of witnesses, both for the prosecution and for the defence, and under our system of justice in Hong Kong and throughout the common law world, the person best equipped to resolve those issues, in fact, the person charged with the duty of resolving those issues, is the trial magistrate.

7. Mr Wyeth is an experienced magistrate, from his statement of findings it is quite clear that he fully understood the evidence given before him and applied it correctly. He was aware and clearly demonstrated in his statement of findings that, although he disbelieved the appellant, the burden still lay on the prosecution to prove the appellant's guilt on both charges that he faced.

8. Mr Wyeth, as trial magistrate, had the advantage, which I do not have, of having heard and seen the witnesses, both those for prosecution and those for the defence, including the appellant, give evidence. There is nothing in Mr Wyeth's statements of findings which indicates that his approach to the evidence or the case was, in any way, in error. As an appellate judge, it is not for me to substitute any view that I may have on reading the Appeal Bundle from Mr Wyeth's views on the veracity and reliability of witnesses.

9. I am satisfied that Mr Wyeth's conviction of the appellant on both charges is unassailable on appeal and, therefore, the appellant's appeal against conviction on both charges is dismissed.

10. I turn now to the appeal against sentence. Mr Wyeth considered the appellant's offences to be akin to pickpocketing. He was clearly right in doing so, this is just another example of pickpocketing or snatching type crimes of dishonesty.

11. Mr Wyeth is an experienced magistrate and was well aware that the appropriate punishment for single-handed pickpocketing without aggravating features is 15 months' imprisonment. He took into account that the appellant had acted in concert with others, which he saw as an aggravating factor and added three months to his starting sentence to reflect that, he was right in doing so. He then, correctly and very fairly to the appellant, took him into account the appellant's clear record and reduced the starting sentence of 18 months' imprisonment by three months, and decided that 15 months' imprisonment on each charge was the appropriate sentence for this appellant.

12. Although Mr Wyeth did not make it clear in his reason for sentence, there is no doubt that his intention was to order that the appellant serve both sentences concurrently. Mr Wyeth's overall sentences of 15 months' imprisonment for this type of theft are entirely in accordance with established sentencing principle, and I see no reason to interfere with them. The appellant's appeal against sentence is dismissed.