HKSAR v. ONG SIU SIN, KEVIN

HCMA 268/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 268 OF 2011

(ON APPEAL FROM ESCC NO 1876 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted of one count of making off without payment, contrary to section 18C of the Theft Ordinance, Cap 210. He appealed his conviction. At the outset of the hearing, the appellant sought to adjourn the hearing so as to seek leave to judicial review the Director of Legal Aid’s refusal to grant him legal aid. I refused his application. In this case, the offence took place in December 2008. The trial did not take place till October 2010. Verdict was pronounced in March 2011. His application for legal aid was refused in May 2011. Since then, the appellant, for various reasons, sought to adjourn the case. I am not impressed with the delay and, more importantly, for reasons stated below, his case is also devoid of any merits.

Prosecution case

2.  PW1 worked as a team leader at the Champagne Bar (the bar) of the Grand Hyatt Hotel (the hotel).  On the Christmas eve in 2008, the appellant (known to PW1 as Dr Wong, a plastic surgeon) and another frequent customer, Wah Gor, a female and PW2 were patronising the bar.  When Wah Gor and his female friend were about to leave, PW1 instructed her colleague to print out a bill which she presented to the appellant and Wah Gor.  The appellant told PW1 that he would take care of the bill later.

3.  The appellant ordered another round of drinks before walking out of the bar, leaving his jacket on the chair.  He had never returned.  Realising that, PW1 requested PW2 to settle the bill.  PW2 refused and tried to flee but was brought back to the hotel.  The case was reported.

4.  As the last round of drinks had not been consumed, the entries were voided and the bill was reprinted.  On 23 February 2010, PW1 identified the appellant in an identification parade. 

5.  According to PW2’s evidence, she came to know one Matthew Wong (Matthew) who introduced himself as an investment manager at Merrill Lynch on the internet.

6.  On 24 December 2008, Matthew invited her for a drink.  When she arrived at the bar, Matthew introduced his friend, Wah Gor and his girlfriend to her.  After Wah Gor and his girlfriend left, PW2 intended to leave but was told by Matthew to stay behind.  Matthew then talked on his mobile phone and walked away from the bar.  Later, PW2 was asked to settle the bill.  After speaking to Matthew on the phone and learning that Matthew refused to settle the bill, she tried to leave the bar but was stopped outside the hotel.

7.  The prosecution also called PW4, a clerk of China Mobile Hong Kong, to testify.  PW4 was responsible for providing personal information and call records of customers on request.  Because of her work, she became familiar with the operation of her company’s computer system.  PW4 also produced call records and subscriber’s detail in relation to one mobile phone number 51398384 which the appellant was the subscriber. 

8.  The prosecution also called PW6 who was the manager of the bar.  According to PW6, there were four customers sitting in the table that night.  After that incident, the bar was operating as usual and that the computer was working properly.

Defence case

9.  The defendant did not testify.  Essentially his defence was one of mistaken identification.

Grounds of appeal

10.  In his draft grounds of appeal, the appellant set out five grounds:

(i)  The learned magistrate failed to apply the principles laid down in Turnbull.

(ii)  The learned magistrate wrongly accepted PW1’s evidence.

(iii)  The learned magistrate wrongly admitted call records produced by PW4.

(iv)  The learned magistrate reversed the burden of proof.

(v)  The learned magistrate wrongly came to the conclusion that the appellant was Matthew.

Discussions

11.  The grounds put forward to a large extent had been argued once on his behalf by counsel before the learned magistrate during no case stage.  The first two grounds can be discussed together for they essentially attack the reliability of PW1’s evidence.  

12.  The learned magistrate was fully aware of the contention of mistaken identity.  Apart from the credibility and reliability of PW1 generally, the learned magistrate also considered the following circumstances:

(a)  the position of PW1 as team leader and her tasks and responsibilities to greet customers and note their drinking habits;

(b)  the number and frequency of visits the appellant paid to the bar in the past;

(c)  the number of conversations PW1 had with the appellant in the past generally and on that night specifically; and

(d)  the lighting conditions of the bar.

13.  Clearly, the learned magistrate bore in mind all the criteria laid down in Turnbull.  Having considered all the circumstances, the learned magistrate was satisfied that PW1’s identification evidence was of good quality, there is nothing to fault the learned magistrate’s conclusion.

14.  The appellant also argued that PW1’s evidence should not be relied on because there were inconsistencies and discrepancies, such as the number of people present at the table, the time the bill was presented, the number of drinks ordered and consumed, PW1’s busy work responsibility during the night of a busy Christmas eve, etc.  I have carefully looked at all these so-called deficiencies.  Having read the transcripts of the proceedings, I am in agreement with the learned magistrate’s conclusion, namely, that PW1’s evidence was simple, direct and fair.

15.  The appellant further argued that PW2’s evidence should not be relied on too for she had a distinct self-serving motive to shift her criminal liability.

16.  The learned magistrate was fully aware of PW2’s position.  She bore in mind that PW2 might have her own agenda to serve and therefore specifically stated that she had approached PW2’s evidence with care.  As a result, the learned magistrate accepted only those parts of her evidence which took place prior to her having a struggle with PW1 and PW6.

17.  The appellant also argued that the call records, except one call on 17 December 2008, did not reveal any call history as stated by PW2.  That may be the case.  However, when PW2 mentioned “talking” to the appellant she sometimes meant “chatting on the internet”.  Her evidence was not entirely clear.

18.  On the other hand, call records clearly showed that telephone calls had been made between PW2’s and Matthew numerous times on 24 December 2008.

19.  In respect of Ground 3, the appellant argued that call records between him and PW2 should not be admitted.

20.  PW4’s evidence shows that after receiving requests from the police, she then retrieved call records from her company’s computer system.  PW4 also gave clear evidence concerning the activities performed by her company’s computer system and the safeguards in place to prevent interference.  A certificate under section 22A of the Evidence Ordinance, Cap 8, was also produced in the course of the trial.  In short, the learned magistrate was satisfied that the requirement as prescribed in section 22A of the Evidence Ordinance, Cap 8, had been fulfilled.  There is nothing wrong about that.

21.  In respect of Ground 4, the learned magistrate did not reverse the burden of proof on the appellant.  The appellant did not testify.  No adverse inference had been drawn against him.  However, it does mean that there is no evidence to contradict PW1’s evidence. 

22.  In respect of Ground 5, there is ample evidence for the learned magistrate to come to the conclusion that Matthew was the appellant.  PW1 identified the appellant and stated clearly that apart from the appellant, Wah Gor was the only male in the table.  PW2 also stated clearly that when she arrived at the table, she was introduced to one Wah Gor and a lady.  PW6 also stated that there were four customers at the table.  Both PW1 and PW2 spoke about the jacket left behind by the appellant.  Further, after the appellant’s departure from the bar, PW2 spoke to Matthew on phone and the telephone number indicated was subscribed by the appellant.  Apart from a mere assertion that the appellant lost his mobile phone one month before, there was nothing to stop the learned magistrate from drawing the irresistible inference that she was entitled to.

23.  Having considered all the circumstances, including 29 pages of submission from the appellant, I am satisfied that the conviction is neither unsafe nor unsatisfactory.  The appellant’s appeal against conviction is dismissed.