HKSAR v. LIMBU, UMESH

HCMA 24/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 24 OF 2015

(ON APPEAL FROM ESCC 2511 OF 2014)

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REASONS FOR JUDGMENT
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1.  The appellant appealed against his conviction of 4 offences of Theft contrary to section 9 of the Theft Ordinance Cap 210. At the hearing of the appeal I dismissed his appeal. Below are my reasons.

Admitted Facts

2.  In a set of admitted facts the appellant admitted that he withdrew using another person’s (Renuka) bank card at ATM machines money from Renuka’s HSBC bank account.  The particulars are set out below: -

Charge	Date	Withdrawal Amount (HKD) on each occasion	Total amount (HKD) withdrawn	Number of withdrawal
Charge 1	7 March 2014	$10,000 & $10,000	$20,000 cash	2
Charge 2	8 March 2014	$2,000, $2,000, $10,000 & $3,000	$17,000 cash	4
Charge 3	14 March 2014	$10,000 & $10,000	$20,000 cash	2
Charge 4	14 March 2014	$25,000	$25,000 transfer to appellant’s own Hang Seng Bank account	1

3.  The total amount withdrawn by the appellant was HK$82,000.  Cash in the sum of HK$57,000 was withdrawn in charges 1 to 3 and HK$25,000 was transferred to his own bank account in charge 4. 

Prosecution case

4.  The prosecution case was that Renuka gave her bank ATM card (bank card) to the appellant on his request believing the appellant’s reasons that he required it for legitimate purposes as represented by him. Renuka however never consented or agreed to him withdrawing or transferring any money from her bank account.  At no time did she ever give the appellant her PIN number to her bank card.

Defence case

5.  The defence case at trial in summary was that the withdrawals and transfer were made with full knowledge and consent of Renuka. The sum of HK$82,000 comprised of HK$40,000 of the appellant’s own savings and HK$40,000 was a loan made by Renuka to the appellant.  The appellant had on divers dates prior to the withdrawal deposited his savings into Renuka’s account.  It was the defence case that as the appellant had refused to marry Renuka’s sister, she drummed up these accounts against him.

Issues at trial and on appeal

6.  The issues at trial and on appeal were whether the appellant was dishonest in the appropriation of funds from the bank account of Renuka and her credibility. 

Grounds of appeal

7.  The main ground of appeal was that as stated in his Form 1 Notice of Appeal against Conviction, stating that the conviction was unsafe and unsatisfactory.  The appellant submissions in support of the ground were the same as those made by his defence counsel at the trial.  Those submissions being that he was not dishonest as Renuka consented to his withdrawal and transfer of the money.  The money was his own savings and a loan from Renuka.  As he rejected her suggestion to marry Renuka’s sister she fabricated her account. 

Magistrate’s findings

8.  The magistrate found Renuka to be an honest and reliable witness.  He rejected the appellant’s evidence. 

9.  He accepted that Renuka met the appellant in January 2014 when they worked together in the same company as cleaners. 

10.  In his statement of findings the magistrate stated the following :

“27. …I was mindful also of the submissions made by counsel for the defense as to whether it was plausible that Ms. Renuka had been so “naïve” in parting with her ATM Card to the defendant in circumstances as she described.

28.    The truth lies in the details of Ms. Renuka’s evidence.  The defendant betrayed the trust reposed in him both as a friend and as a colleague.  He did so by falsely presenting himself as a helpful person.  In order to advance the theft allegedly committed on 7 March, 2014, he offered a favor to her, purporting to attend the shop and to secure phone connection.  He persuaded her to part with the ATM Card and secretly stolen money from her. The fact that in the end she was able to get the phone service as intended no doubt reinforced her trust in him.

29.    Not content with having taken Ms. Renuka of $20,000, the defendant, on 8 and 14 March, 2014, embarked on another scheme to take money from her dishonestly.  He did so by again preying on her vulnerability as a trusting person.  This time, he pretended that he was in trouble with the police and in the course of obtaining legal advice.  He again was able to persuade her to pass on to him her ATM Card, the whole object of his lies was to steal money from an unsuspecting victim.”

11.  As to how the appellant came to know the PIN number of the ATM bank card the magistrate accepted that in the course of the appellant and Renuka’s friendship they had gone to the bank together before.  Renuka remembered on one occasion the appellant had leaned over her whilst she was entering her PIN into the ATM. 

12.  The magistrate rejected the appellant’s evidence that the money was his savings as he was struggling to make ends meet, had debts and financial difficulties and therefore could not afford any spare money to be set aside for saving.  He found it implausible that the appellant never kept any saving records and relied on Renuka to keep track of his savings for him.

Analysis

13.  The issue at trial and on appeal was the assessment of the credibility of Renuka and whether the appellant was dishonest.  The magistrate was alive to these issues.

14.  He gave a full and careful assessment to the evidence which had been given on both sides.  The prosecution’s case rested entirely upon the credibility of Renuka’s evidence.  If what she had said was not credible, the prosecution failed because it stood alone.  The magistrate concluded that Renuka’s word was to be trusted and was consistent.  He was satisfied that despite vigorous cross-examination she was unshaken.

15.  In deterring a magistracy appeal, the judge needs to decide whether the magistrate was plainly wrong in his finding of credibility, see HKSAR v FOK, James Alistair HCMA 82/2015, Zervos J said :-

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, the finding was one that no reasonable magistrate could have reached.”

16.  I was satisfied that the magistrate was not plainly wrong in his finding as to the credibility of Renuka.  The submissions of the appellant were to re-argue the same points as had been considered and properly rejected by the magistrate.

17.  The magistrate had the added advantage of having seen the witnesses.  He was fully justified in reaching his conclusion that Renuka was a credible witness and that evidence demonstrated that the appellant had committed the offences.

18.  For the foregoing reasons, the appellant’s appeal against conviction was dismissed.