HKSAR v. SUEN KONG SHING

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTNACE

MAGISTRACY CRIMINAL APPEAL NO.443 OF 1997

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction on 24th April, 1997 by Magistrate A.J. Woodcock of 1 count of criminal damage contrary to s. 60(1) of the Crimes Ordinance.

2. The incident took place on 10th February, 1997 in the Chai Wan MTR Station. There are 2 doors leading to the control room of that station. According to PW2, he noticed the appellant at about 7.10 p.m. The appellant had 2 previous disputes with staff members of that station. PW2 saw the appellant walking to his right and then walked back from right to left. Suspecting that something might happen, he left the control room via the door on the right. He saw the appellant standing at about 1 to 1½ feet away from the lock of the left door. He was about 5 feet from the appellant who was holding a tube of glue with his right hand and putting the cap back on with his left hand. He challenged the appellant who made no attempt to stop. PW2 went after the appellant. When he was about 1 - 2 feet away from the appellant on a pedestrian walkway, the appellant took the tube of glue out from his bag and threw it down onto the street level. The appellant then pushed PW2 aside and left. He retrieved the tube of glue which he produced in evidence. He last used the left door of the control room at about 6.30 p.m. that evening. When he examined the lock on his return, he could not insert his key onto the key hole as the same was stuck.

3. The appellant did not give evidence. His sister was called with the view of establishing an alibi. The Learned Magistrate gave full reasons in rejecting her evidence.

4. Mr. Philip Wong for the appellant took 2 points. He submitted that PW2's evidence is unreliable in that he made no disclosure until cross examination that he beckoned PW3 to assist him in stopping the appellant. Mr. Philip Wong accepted that this was not a point taken before the Learned Magistrate. Mr. Philip Wong further submitted that the Learned Magistrate erred in finding that the lock was damaged by the appellant. My attention was drawn to the judgment of O'Connor J. in The Queen v. Chong Kam Sau where the Learned Judge said this:

"As I said in Lam Kam Ming's case the reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrating that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable the appellate court to perform its duty."

5. I find it difficult to see how the Learned Magistrate failed to heed the principles stated in Chong Kam Sau. There is no criticism of her rejection of the alibi defence. She took into consideration the previous incidents. She guarded against the possibility that PW2 might be deliberately framing the appellant. She weighed the inconsistencies in the evidence of PW2 which she did not find to be material. It is wholly unrealistic to expect the Learned Magistrate to tackle the first point taken before me when the same was not in issue before her. On the evidence of PW2, the Learned Magistrate had properly drawn the inference that the lock was damaged by the appellant.

6. I find this appeal to be wholly without merit and I dismiss the same.