HKSAR v. CHEANG WAI KUONG

HCMA 221/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 221 OF 2003

(ON APPEAL FROM KCCC 8326/2002)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy of one count of theft, contrary to section 9 of the Theft Ordinance (Cap. 210). He was charged jointly with two other men. He pleaded not guilty and was represented at trial by a duty lawyer. The theft was of a mobile phone. Today, the Appellant appeals against his conviction on the basis that it was against the weight of evidence and that he was framed up. There were no particularized grounds, but the Appellant expanded on his assertion that the conviction against the weight of evidence. An application for adjournment made by the Appellant today was refused.

2. The facts were that police in plain clothes were keeping observation in Tsim Sha Tsui. Three men were seen standing near the Miramar Shopping Centre. They were put under close observation when a police officer found they were looking at the bags of passers-by. One man led the group along Nathan Road towards Austin Road. As the men crossed Austin Road close to Jordan Road, the Appellant was seen to tap one man on the shoulder. The three men crossed Jordan Road and entered the Jordan MTR station. The officer followed them.

3. Inside the MTR concourse, the men were seen to loiter separately and PC 33833 (PW2) saw the Appellant signal to one man (referred to by the Magistrate as Man No. 1) and the other (Man No. 3) by waving his hand. The men were seen to form a circle and have a brief conversation. Man No. 3 pointed in the direction of the cake shop and Man No. 1 walked into the shop. Man No. 1 stood behind the female target, (PW1). The Appellant and Man No. 3 entered the shop and stood on either side of Man No. 1, abreast of him and shoulder-to-shoulder. The Appellant stood at the left side of Man No. 1. PW2 saw Man No. 1 reach his right hand into PW1's handbag and take out a mobile telephone. The men turned around and walked away in some haste. The officer contacted his team members and all three men were stopped and arrested.

4. At trial, it was the Appellant's case that he was a citizen of Macao unfamiliar with Hong Kong and a man of clear record. He arrived in Hong Kong on a family visit and planned to leave the next day. He denied ever standing outside the Miramar Shopping Centre. He said he only met the two men with whom he was jointly charged in a street in the Jordan area. He asked them for directions as to how to get to Castle Peak Road; he was buying cigarettes at the time they passed by. One man said that he did not know how to get to Castle Peak Road because this was his first visit to Hong Kong, whilst the other man invited the Appellant to accompany him into the MTR station so he could direct him. Inside the MTR, the Appellant found that he had insufficient coins to buy a ticket, so he took out a $50 note and went to the cake shop in the concourse intending to get change. Before he reached the cake shop, he saw one of the two men he had seen in Jordan walking hastily from the shop. He saw some people chase that man and then he himself was grabbed by two others. Subsequently he was taken to the police station and charged.

5. The Magistrate considered the evidence of the witnesses and was satisfied that Man No. 1 had taken a mobile telephone which belonged to PW1 and that she had not consented to his taking it from her bag. He was satisfied with the identification of the Appellant as one of the three men followed by the officer, from outside the Miramar Shopping Centre to the MTR concourse. He was satisfied that the Appellant and the other two men walked along Nathan Road communicating with one another and had signalled to one another in the shop. He found the men left the cake shop hastily together. He was satisfied the Appellant shared a common intention with the other two men to commit theft. On that basis he convicted the Appellant.

6. On appeal the Appellant maintained his denial. He said he had never seen the victim. He said that over a long period when he had been appearing at intervals in the Kwun Tong Magistracy, he had never been able to find the victim and the victim had never testified against him. The police officer had produced a mobile phone, but the Appellant questioned whether or not that phone was in fact the mobile phone of the victim and asked how many phones of this type the police officer had. He said the victim had testified that a woman police officer showed her the telephone after its recovery, whereas PC 33833 a male police officer, said that he had. This discrepancy was dealt with by the Magistrate, who found it was unimportant in the context of the evidence.

7. The Appellant complained that although six police officers were at the scene, only two gave evidence in court. PC 33833 had a dispute with him and told him that he would be framing him. He said he was only asked to produce identification at the scene, but had never been told a theft case was being investigated. The Appellant felt very aggrieved as he did not know the 1st or 3rd Defendants and the whole account of his doings was made up by the police.

8. He had complained against PC 33833 to CAPO and he had reported it in the press. While he was on bail, he tried to commit suicide to show he had a genuine complaint. He spoke of an occasion when he jumped off the Tsing Yi Bridge, from a height of about 20 feet, in an apparent suicide attempt. Police and Fire Services Officers arrived at the scene, but he refused their help and allowed only reporters to approach him. This incident received some coverage in at least one Chinese newspaper, a copy of which was produced and translated for the court by the interpreter. The Appellant confirmed that his complaint to CAPO was being pursued.

9. I considered the facts of this case as presented in the Magistrate's Statement of Findings and have listened to what the Appellant has said. I am satisfied that this offence has been established. I am satisfied too that the Appellant was represented at trial and he was able to put his defence to the court.

10. I can find no way in which the Magistrate erred in law in dealing with the case, nor can I find that he erred in dealing with the facts. Accordingly, this appeal against conviction is dismissed.