HKSAR v. YIM WOON MAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL NO. 829 OF 1997

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J U D G M E N T

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1. The Defendant appeals against his conviction for theft. The theft allegedly occurred when the Defendant in his role as police officer attended the scene of a car accident and a fireman who was at the scene of the fire, gave evidence that, the Defendant had removed from the back of the car, a wallet. This was the subject of the theft charged.

2. There were various grounds of appeal put forward by Mr. Tracy for the Appellant but only one of them in my view has any substance.

3. It is clear that the magistrate accepted, as he was entitled to, the evidence of PW2 who was the fire officer who pointed out the wallet. He said he pointed out the wallet to the officer (Appellant) and that it was taken into custody by the Appellant, who was the investigating officer at the scene. Clearly, there was an appropriation on that basis.

4. However it appears from the Statement of Findings that the Magistrate relied on questions put by Defence counsel to PW2 as being equivalent to admissions made by the Appellant which established the element of dishonesty.

5. Para. 22 of the Statement of Findings indicates that the Magistrate took into account both the exculpatory cautioned statements of the Appellant as showing the Appellant's reaction at the time the allegation was put to him. Those initial allegations were substantially different from the amended charge Appellant faced at the close of the Prosecution case. (The Appellant did not give evidence at the trial.)

6. The Magistrate considered the content of Defence Counsel's cross-examination and treated various matters put to PW2, the fire officer, as being effectively admissions of Appellant from which he could infer dishonest appropriation.

7. It appears that he felt obliged to do this as the prosecution case had gone no further than establishing an appropriation. For instance no evidence had been led that the Appellant had never handed in the wallet that he had appropriated in his capacity as investigating officer.

8. Any information gleaned from the Appellant's reaction as set out in the cautioned statements cannot have helped the Magistrate to determine the dishonesty, or otherwise, of the appropriation; nor could the questions put by defence counsel to PW2 in cross-examination have helped in this regard.

9. I cannot be satisfied from the Statement of Findings that the magistrate had before him sufficient information from which to draw the inference that he felt able to draw, and for that reason I propose to allow the appeal.