HKSAR v. BULLEN CHRISTIAN ANTHONY

HCMA1267/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1267 OF 2001

(ON APPEAL FROM WSCC 1720 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 5 November 2001 of one charge of abstracting electricity and upon the same day was sentenced to a fine of $10,000 together with costs of $5,000.

2. The facts relied upon by the magistrate were that the appellant resided at premises at Flat C, 4/F, 38 - 44 D'Aguilar Street, Central, Hong Kong and that between 1 January 2000 and 1 December 2000 in respect of that property, dishonestly used without due authority a quantity of electricity. The offence being abstracting of electricity without authority, contrary to section 15 of the Theft Ordinance, Cap.210.

3. The evidence of the prosecution came from two employees of the Hongkong Electric Co., Ltd ("Hongkong Electric") who said that having gone to the premises, they found that the electricity which had previously been disconnected by Hong Kong Electric for non-payment of payments due for the consumption of electricity and for a deposit to secure the account and found that the electricity had been reconnected by a piece of wire which was produced and further that no metering device was in position to measure the amount of electricity used and therefore to afford a means of measuring payment due to the company.

4. The appellant's case was that a meter was in position, that he had been in regular contact with the company had been frank in his reconnection of supply and he relied upon those matters to demonstrate his honesty, honesty being an element in the offence.

5. During the course of the trial just prior to a lunch adjournment, the evidence of PW1 was completed. When PW2, whose evidence was expected to confirm that of PW1, commenced his evidence after lunch, he was asked if he had conversation with PW1 during the adjourned period. He admitted that he had. He said that they did not discuss the evidence given by PW1 but PW1 had told him about the reconnection of the electricity supply. He again denied knowing the evidence actually given by PW1 but confirmed that the subject of the conversation was the reconnection of supply.

6. Miss Cheng for the respondent quite rightly points out that there is no suggestion of the absence or presence of a meter being discussed. However, the magistrate relied wholly upon the evidence of PW1 and PW2 and found in the course of the Reasons that he gave that they told the "unvarnished truth". This means that he found them to be wholly credible. Where there is cogent evidence before a magistrate that there has been discussion of the evidence between witnesses on a matter which is material to the elements of the offence it is necessary for a magistrate to consider that evidence and in his Reasons give reasons why, notwithstanding what appears to be collusion between the two witnesses, he still finds their evidence to be sufficiently credible so that he can be sure of his decision. No such reference is made anywhere in the Reasons given by the magistrate and this is an omission which, in my view, is such as to give rise to sufficient concern to allow the appeal against conviction.

7. The appeal against conviction is allowed, the sentence is set aside and the order as to costs is quashed. There will be no order as to re-trial.