THE QUEEN v. LAM SIU-HUNG

IN THE SUPREME COURT OF HONG KONG

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JUDGMENT

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1. On 20th August of this year LAM Siu-hung was convicted by Mr. Hill at South Kowloon Magistrate's Court of attempted theft. Against that conviction he appeals to this court. His own notice of appeal has added to the typed grounds the words "I have never seen the private car and I did not know the colour of the private car. I just slept on the stairs." This refers to the evidence given at the court below where the issue arising between prosecution and defence was whether the account of the matter given by the police was true as opposed to that given by the appellant. The police gave evidence that they had seen the appellant trying the handles of a number of motor cars in a car-park and looking through the windows. The appellant gave evidence to the effect that he had been asleep on the stairway in the car-park and had been roused by the police and searched on suspicion of having dangerous drugs on his person. The Magistrate then found the appellant guilty in the footing that the police evidence was accepted and that of the appellant rejected. In the absence of any other factor a finding that he was attempting to steal from the several cars described necessarily involved a finding that he had attempted to steal from the particular car named in the charge.

2. The appellant has since had the advantage of Legal Aid and of the attention given to the facts of the case by Mr. Spicer who has, in the first instance, drawn the court's attention to the terms of the Statement of Findings which was written by the Magistrate on the 18th of September after Notice of Appeal had been given. In short, that Statement of Findings amounted to a re-appraisal of the evidence which the Magistrate mad re-read. The discovery of what, I believe wrongly, he thought was a further discrepancy in the prosecution evidence led him to the conclusion that had he heard the evidence again he would have acquitted. But this really is ex post facto. What this court has to consider is the propriety of his contemporaneous finding and whether he was entitled to make it; a finding he made when the demeanour of the witnesses was fresh in his mind.

3. In my opinion the contemporaneous finding that the evidence of the police was to be accepted as opposes to that of the appellant was one with which I am in no position to interfere even though the Magistrate himself has had second thoughts.

4. The appellant was charged in these terms: "LAM Siu-hung, you are charged that on the 8th day of July, 1985, on the 8th Floor of Wilson Carpark, Yaumati, Kowloon, in Hong Kong, you did attempt to steal something from a private car with registration number CC5142." That form is not exactly on all fours with the terms recommended in Re Attorney-General's References (Nos. 1 and 2 of 1979)⁽¹⁾, but is sufficiently proximate to constitute a good charge.

5. When a man is charged with attempting to steal specific property the prosecution have to prove that that specific property was available to be stolen. If it is not so available there can be no attempt to steal it as explained by Lord Reid in Haughton v. Smith⁽²⁾ at pp. 499 and 500. Here we are concerned with a general allegation; an allegation that the appellant was attempting to steal whatever should appeal to his acquisitive instincts on effecting an entry into private car registration No. CC5142. There is no evidence one way or the other as to whether there was any property capable of being stolen in that car at the material time. As to the legal effect of this the court is bound by the authority of the Court of Appeal in R. v. Lee Shek ⁽³⁾ where, dealing with the situation of a pick-pocket who had attempted to steal from a person in the public stand of a racecourse belonging to the Jockey Club Huggins J.A. stated:

"It all boils down in the end to the question whether it is necessary for the prosecution to bring affirmative evidence that the victim owned some property both capable of being stolen and sufficiently proximate to the act of the pickpocket or whether common sense would not predicate some such property. In my view the man in the street would experience no difficulty in answering that question and concluding that the pickpocket was guilty of attempted theft. We are dealing with an offence at Common Law and the Common Law, though not alas Statute Law, is the embodiment of logic and good sense. Where it appears to be otherwise the fault lies not with the law but with the judge's who have endeavoured to declare it."

In the face of those words Mr. Spicer sought to draw a distinction between the situation of a pickpocket who finds that the pocket in which he inserts his hand empty but who, none the less, is guilty of an attempt to steal and that of a person who tries to effect an entry into a motor car. I can see no logical validity in such a distinction. The man in the street would predicate the presence of property susceptible of being stolen in private motor car CC5142 and find the appellant guilty of attempted theft.

6. Applying, therefore, the Common Law and common sense to the facts found by the Magistrate I am satisfied that the appellant was properly convicted as charged and that the appeal fails.

7. In conclusion I would comment that while Legal Aid was granted late it was granted rightly. I am very grateful for the assistance I have had from both counsel.

(1) [1979] 3 All E.R. 143

(2) [1975] A.C. 476

(3) [1976] H.K.L.R. 636