ANTONIUS MARIUS JACOBUS VAN HUIJSTEE v. HKSAR

FACC No. 14 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2010 (CRIMINAL)

(ON APPEALFROM HCMA NO. 459 OF 2010)

____________________

Between:

____________________

__________________

J U D G M E N T

__________________

Mr Justice Bokhary PJ:

1.  This appeal is disposed of without an oral hearing under the procedure laid down in Mok Kin Kau v. HKSAR (2008) 11 HKCFAR 1.  At the hearing of the application for leave to appeal to this Court in the present case, Mr Kevin Zervos SC who led for the respondent very sensibly did not oppose the grant of leave.  In granting leave, the Appeal Committee observed that if upon reflection the prosecution decided not to oppose the appeal, it may be appropriate to dispose of the appeal under the Mok Kin Kau procedure. This is what the Court said in Mok’s case at para.2 :

“An uncontested appeal can be allowed without putting any party to the expense of an oral hearing if it can readily be seen, even without the assistance of oral argument, that the appeal should be allowed. Where costs remain in issue, they can be dealt with on written submissions. In this uncontested appeal, costs are not in issue.”

As it has turned out, the appellant and the respondent have lodged a joint printed case by which they invite the Court to allow the appeal with costs here and below.

2.  Sparingly resorted to, the Mok Kin Kau procedure has proved useful.  It was laid down in 2008.  Since then the Court has allowed appeals under that procedure at the rate of one appeal per year.  In  2009 the Court allowed a civil appeal under that procedure (in Chiu Hoi Po v. Commissioner of Police (2009) 12 HKCFAR 597).  And in 2010 the Court allowed a criminal appeal under that procedure (in Mahabobur Rahman v. HKSAR (2010) 13 HKCFAR 20).  The present appeal is the third one, apart from the Mok appeal itself, to be allowed under that procedure.

3.  Shortly stated, the circumstances are as follows. 

4.  The appellant was convicted after trial before John Glass, Esq. in the Magistrate’s Court of stealing $1,600 in cash from a taxi driver inside a taxi.  He then appealed against conviction.  His conviction was affirmed by Beeson J on intermediate appeal to the High Court.  The prosecution’s case was based on the testimony of the taxi driver.  He said as follows.  His wallet containing $1,600 was inside his shoulder bag.  He saw the appellant take that wallet out of that shoulder bag, remove the money in that wallet and put that money in his i.e. the appellant’s own wallet.  The appellant did not testify.  But he called his friend and colleague, Mr Mattieu Raffestin, who had been in the taxi with him.  Mr Raffestin’s testimony was to the following effect.  The appellant had not taken any money out of the wallet. They saw the shoulder bag on the floor of the taxi.  The wallet was in, but almost falling out of, the shoulder bag.  Upon the appellant exclaiming that “somebody forgot his bag” and picking it up, the taxi driver took the bag and demanded that he be given his i.e. the taxi driver’s money.  He i.e. Mr Raffestin then said that it was a “scam” and that the police had to be called. 

5.  One of the problems with the prosecution’s case is this.  The taxi driver said that the $1,600 in his wallet – which cash he says that the appellant took out and put in his i.e. the appellant’s own wallet – was made up of one $500 note with the remainder made up of $100 notes.  That meant one $500 note and eleven $100 notes.  But the cash which the police found in the appellant’s possession consisted of eight $500 notes, six $100 notes and some smaller notes.  So the taxi driver said that eleven $100 notes were taken, but only six $100 notes were found in the appellant’s possession.  It was no part of the prosecution’s case – and it was not put to Mr Raffestin in cross-examination – that some of the taxi-driver’s money came into his possession.  Moreover only two $100 notes were found in Mr Raffestin’s possession.  So between them, the appellant and Mr Raffestin only had eight $100 notes in their possession.  That is three less than the eleven which the taxi driver said had been taken from his wallet.

6.  The magistrate never resolved that problem.  What did the appeal judge do?  She said :

“Another area of conflict was the number and denomination of the notes. [Defence counsel] alleged that the Magistrate did not address the discrepancy between the denominations and numbers of the notes said to be stolen by [the appellant] and the notes found in his possession on arrest. It was an Admitted Fact that [the appellant and Mr Raffestin] stayed by the car until police arrived. Although there was no evidence from [the taxi driver] that he saw any transfer of notes between [the appellant and Mr Raffestin] or that he did not see any other disposal of notes, there was time and opportunity for any transfer or disposal to be accomplished.

[The appellant and Mr Raffestin] left the car while it was still moving taking their luggage with them.  Clearly [the taxi driver] could not have left the car immediately at that time, as he had to park the taxi outside the exit.  [The taxi driver] also communicated with the security guards which would distract his attention for a while.  There was thus an opportunity for the money to be transferred, or swapped, without [the taxi driver] seeing it.  The agreement of [the taxi driver] that [the appellant and Mr Raffestin] were in full view all the time, did not preclude their dealing with the notes, or transferring [the appellant’s] wallet from the jacket where [the taxi driver] said he saw it placed to the suitcase where it was eventually found.”

7.  All that was put to Mr Raffestin is that he did see the appellant taking the money out of the taxi driver’s wallet.  He disagreed.  It was never suggested to him that there was anything of the kind raised by the appeal judge who spoke of some transfer or disposal of notes in which Mr Raffestin was involved.

8.  In granting leave to appeal under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute, the Appeal Committee said that there were at least two bases on which it is reasonably arguable that there had been a departure from accepted norms such as to constitute a substantial and grave injustice. First, with a view to resolving the discrepancy between, on the one hand, the taxi driver’s evidence as to the banknotes which he lost and, on the other hand, the banknotes which were found in the appellant’s possession, the appeal judge spoke of, among other things, a transfer of banknotes between the appellant and his colleague who had been in the taxi with him.  But it had not been put to the colleague in cross-examination by prosecuting counsel that he had been party to such a transfer.  Secondly, the appeal judge’s approach appears to have reversed the burden of proof.

9.  Both of those points are pursued by the appellant and conceded by the respondent.  Paragraph 13 of the joint printed case reads as follows :

“In this case, the Appellant pursues the argument, the force of which the Respondent acknowledges, that there is such a departure in the following respects :

(1) The appeal judge in determining the appeal took into account the possibility of a transfer of banknotes between the Appellant and his colleague even though this had never been put at trial to the colleague by prosecuting counsel;

(2) The lack of sufficient HK$100 banknotes found on either or both of the Appellant and his colleague was a piece of circumstantial evidence that tended to show that the Appellant did not steal or may not have stolen any money as alleged.  The Appellant was entitled to an acquittal unless the prosecution was capable of proving the Appellant’s guilt beyond reasonable doubt by demonstrating that there had in fact been any disposal of the cash or transfer between the Appellant and his colleague.  That the appeal judge dismissed the appeal on the basis that the testimony of the complainant did not preclude the possibility of the Appellant and his colleague from having dealt with or transferred cash between themselves appears to have reversed the burden of proof onto the Appellant to negate the said possibility.”

10.  It is plain that the appeal must be allowed.  The Court allows the appeal to : quash the appellant’s conviction; set aside the fine imposed on him and the order for compensation made against him; and award him costs (to be taxed if not agreed) here and in the courts below.