THE QUEEN v. LEUNG YIU NGAU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 906 OF 1988

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J U D G M E N T

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1. The Appellant was convicted after trial on a charge of attempted theft, the allegation being that he was attempting to pickpocket from a lady's handbag in a street in Kwun Tong.

2. The prosecution called two witnesses. One was a police officer who was on duty for the express purpose of looking for pickpockets. He said that he saw the Appellant eyeing a particular lady in the street, that he saw the Appellant cover his right forearm with a newspaper and then touch the buckle of the handbag of that lady, that she turned around, the Appellant withdrew his hand and the officer then arrested him. The police officer said that on arrest he cautioned the Appellant, who said, in reply to the caution, "Officer, I was arrested by you before I can get anything from her, what can I say?"

3. In the course of his evidence the officer said that whilst he was watching the Appellant the street was crowded, that people passed between him and the Appellant as he was observing him and that he had to adjust his position now and then to see what the Defendant was doing. But he went on to say that at no time during the incident did he lose sight of the Appellant.

4. The lady in question gave evidence and said that at the time when she was walking in the street she suddenly felt a strong pull at her handbag, that she turned her head around to see what was happening and found that a man behind her was already apprehended by two persons who claimed they were CID Officers. She checked her handbag, found the buckle had been undone but none of the contents were missing. She said that earlier she had had occasion to remove something from her handbag and had then refastened it. When she was cross-examined by the Appellant, who was unrepresented at the trial, she was asked why she pointed him out as the one who had unbuckled her handbag. She said:

"I knew that someone was trying to touch my handbag. As soon as I felt the pull, I turned my head and saw you apprehended by the police officers close behind me. I was not sure who did this, but you were closest to me and you were apprehended by the CID when I saw you."

5. In answer to a question by the Court, she said that she remained with the officers after they arrested the Appellant, and she went on:

"I did not hear it clearly what the Defendant said. I only heard words like 'Officer, I did not do it. Officer, give me a chance' and words to that that effect.

6. The Appellant gave evidence and said that it was difficult for him to give an explanation because he did not do it and was framed up. He added he did not know why he was arrested, that he was walking in the street and was suddenly arrested. He thought it was just an identity card check, that they handcuffed him and he was taken to a police station. He said that he did not make any admission.

7. The learned magistrate accepted the evidence of the police officer and the lady with the handbag rejected the Appellant's denial and convicted him.

8. Mr. Laskey, in support of his appeal against the conviction, relies on three main grounds. The first ground is that the magistrate failed to give sufficient consideration to the evidence of the opportunity which the police officer had to have an uninterrupted sight of the Appellant and the claim by that witness that at all material tunes he could see what was being done by him.

9. Mr. Laskey contends that the tenor of the witnesses' evidence was that whenever anything important was happening he couId see it even though there would have been momentary interventions between him and the Applicant as they walked along the street, and in the circumstances it was quite extraordinary for the witness to say that he had never lost sight of the Appellant.

10. However, what the officer said was that at no time during the incident did he lose sight of the Defendant. The incident, of course, was the attempt to steal from the lady's handbag. That evidence was confirmed by the lady herself who said that she felt a tugging at her handbag, and when she turned around, the Appellant was the person who was closest to her. I see nothing in that criticism at all.

11. The second ground deals with two alleged discrepancies in the prosecution evidence, and criticism is made of the magistrate's failure to consider those discrepancies.

12. The first discrepancy alleged is that whereas the police officer said that the lady had looked around at the Appellant before he was apprehended by the policer officers, the lady herself said that he had already been apprehended by the police when she first saw him. Ms. Crebbin in answer to the criticism says that it could hardly be called a discrepancy at all because the observation of the attempt by the police officer and the apprehension of the Appellant were events which would have followed so swiftly upon one another as to be almost inseparable in time that it could well, be that when the lady looked around after feeling the tug the police officers had already pounced upon the Appellant. In any event, the evidence is quite consistent: the police officer saying that he saw the Appellant touch the lady's handbag and the lady saying she felt someone touch the handbag and that the Appellant was the nearest person^, to her when he looked around to see who had done it.

13. The other alleged discrepancy is that whereas the police officer said that the Appellant said one thing, the lady said that he said something quite different. Mr. Laskey says it is an important discrepancy because on the one hand the police officer was saying that at the time the Appellant admitted having done something wrong whereas the lady's evidence in effect was that he denied it. The discrepancy was of great importance because the Appellant's own evidence was that he denied that he had been guilty of any wrongdoing.

14. Again, Miss Crebbin says it is not a discrepancy at all. On the face of it, it is, but in the circumstances it is likely that the officer who has just cautioned an arrested person, will be more attentive to the reply to the caution than a worried lady alarmed by an attempt to steal from her handbag. The lady, however, said that she did not hear clearly what the Defendant said, but that she heard words like "Officer, I did not do it. Officer, give me a chance" words to that effect. A person who says "Officer, give me a chance" can hardly be said to be a person making a firm denial of an allegation, a person claiming to be innocent of any wrongdoing.

15. The discrepancy submission is of no substance in my view. Neither matter called for any comment by the learned magistrate once he came to the conclusion as he was entitled to do, that the officer and the lady were generally in agreement as to what had happened. The Appellant's allegation that there was a frame-up, in the circumstances, bordered on the ridiculous. There is no obligation on a magistrate to deal with the ridiculous.

16. The third ground is that the learned magistrate failed to give any reasons for disbelieving the Appellant's evidence. For the reasons I have just given, in a case such as this, once he accepted the evidence of the two witnesses, the Appellant's claim of a "frame-up" was hardly worthy of further consideration since it was an allegation that a police officer in the street conspired with a pedestrian completely unknown to him.

17. I find no substance in any of those grounds of appeal and therefore the general ground of unsafe and unsatisfactory has no support.

18. The appeal against conviction is therefore dismissed.