HKSAR v. CHAN KWOK CHING

HCMA273/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.273 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by Mr J. Cheng at San Po Kong Magistracy of the offence of theft in that it was alleged that on 22nd October 1997, inside the Nanyang Commercial Bank, he stole one Motorola Star Tac J portaphone, the property of Pau Wai-chun. The conviction was on 11th February 1998 and the sentence by the learned Magistrate was that the Appellant be fined $5,000. The Appellant now appeals against his conviction.

2. The evidence adduced by the prosecution was that the owner of the telephone had left the telephone next to an ATM machine inside the bank and forgot to take it with her when she left the bank. The loss was reported to the police and the police made investigations. Working on the video tape taken by the surveillance camera inside the bank, which showed when the next customer went into the bank and studying the details of transactions of the ATM machine, the police were able to identify the Appellant as the person who came into the bank after the owner of the telephone left the bank.

3. Having identified the possible suspect, the police contacted the Appellant and the Appellant then went to the police station and surrendered the telephone of Madam Pau Wai-chun. That was 16 days after the telephone went missing on 22nd October 1997.

4. The Appellant, having been identified and having gone to the police station with the missing telephone, there was then no question before the Magistrate that it must have been the Appellant who took the telephone from the bank. Therefore the only question for the Magistrate to determine was whether when the Appellant took the telephone he was doing it dishonestly and with the necessary intention of permanently depriving the owner of the telephone. So in that sense, this case is a bit different from the average prosecution where the trial court has to determine the credibility and the truthfulness of prosecution witnesses who give evidence for the prosecution.

5. Ex facie on the evidence adduced by the prosecution, the fact that the Appellant took the telephone and did not surrender it to the police and kept it for 16 days is enough to show a prima facie case of theft. It was therefore up to the Appellant to discharge the evidential burden of trying to satisfy the learned Magistrate, on the balance of probabilities, that he was never dishonest and he never had the necessary intention. The Appellant attempted to do this by having adduced in evidence two cautioned statements which he had given to the police, and also by giving evidence and calling three defence witnesses.

6. Basically and in a nutshell, his explanation was he left the bank with the telephone intending to surrender it to the police. He did not go to a police station after he left the bank because he was in a hurry to return to the construction site that he was working at as he had work to do at the construction site. At the construction site, without his knowledge, a co-worker used the telephone to make some telephone calls. When the Appellant discovered this fact, he did not know what to do and he, instead of then surrendering the phone to the police, decided to take it home. At home, he put the telephone inside a drawer and for the next 16 days, because he was too busy, he completely forgot about the telephone which he had found. And he was only reminded of the fact that he had a missing telephone in his drawer when the police contacted him.

7. The first ground of appeal advanced by Mr Tang for the Appellant is that there had been inconsistent findings of fact. This is said to arise because after convicting the Appellant, the learned Magistrate whilst dealing with mitigation, had said words to the effect that his view of the case was that the Appellant did not know what to do as regards how to handle the situation. Mr Tang submitted that this is inconsistent with the verdict of guilty. Mr Tang also said that if the Magistrate found that the Appellant did not know what to do as regards how to deal with the situation, he could not have had the intention to permanently deprive the owner of the use of the telephone.

8. Immediately following the utterance of those words, the learned Magistrate said the following :

"Just because he did not know how to deal with the situation it does not mean that he did not have the necessary intention to do something."

He did not further elaborate on the intention. But a short time before those utterances, the learned Magistrate in his oral reasons for the verdict had said the following :

"The only inference that I can draw is this, and that is at the time when you took the telephone or after you took the telephone, you had the intention not to return the telephone to its owner, that is to say that at that time you were not acting honestly, and therefore you had stolen the telephone."

Because the Magistrate had so found a short time before what he said when dealing with mitigation, in my judgment, that does not amount to an inconsistent finding by the Magistrate.

9. Mr Chan, appearing for the prosecution, admits that the utterance by the Magistrate when dealing with mitigation was unfortunate, but submits that it does not detract from the findings of fact that the Magistrate had made when convicting the Appellant. I agree with that submission.

10. The second ground advanced by Mr Tang is that the learned Magistrate had given an improper indication which prejudiced the Appellant in the conduct of his case. This is said to arise because after the 3rd Defence Witness (DW3), the employer of the Appellant, had given evidence about the good character of the Appellant, the Magistrate had said to Mr Tang, who was then also representing the Appellant, that he believed the evidence of DW3 and he was impressed with the evidence of DW3.

11. In my judgment, that indication by the learned Magistrate was not improper, and could not have had any effect on how Defence Counsel wanted to conduct the rest of the defence case. In the event, Counsel called another defence witness who testified in effect to the good character of the Appellant by his evidence that on one occasion the Appellant had returned $20,000 which he, the Appellant, had found. The prejudice is said to arise because Counsel was put off calling the 5th Defence Witness who was also another character witness.

12. In my judgment, it, of course, would have been much better if the learned Magistrate had reserved his comments about credibility of witnesses until the time he gave judgment, but in the event, this did not create any prejudice for the Appellant because this witness upon whom the Magistrate commented was but a character witness.

13. The third ground by Mr Tang really overlaps with the first ground which I have dealt with.

14. The fourth ground is the Magistrate had put improper weight on the cautioned statements of the Appellant. There were two cautioned statements and these were adduced at the request of the Defence. The learned Magistrate, when assessing the Appellant's evidence had simply commented on the fact that in the cautioned statements, the Appellant had given two reasons for not returning the telephone whereas in Court he had given an additional reason, namely, that because of family reasons he was too busy to deal with the question of returning the telephone. This does not amount to the Magistrate putting improper weight on the cautioned statements. Basically, at the end of the day, the Magistrate was entitled to reject the explanation by the Appellant. Once he rejected the explanation by the Appellant, it follows that he was then entitled to find that the Appellant was acting dishonestly when he took the telephone and had the necessary intent to permanently deprive.

15. For the reasons which I have stated, the appeal against conviction is dismissed.