HKSAR v. CHAN KOON WAH

HCMA164/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.164 OF 2001

(ON APPEAL FROM ESCC 4400 OF 2000)

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J U D G M E N T

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1. The appellant was charged with an offence of attempted theft. The particulars of the amended charge alleged that "Chan Koon Wah, you are charged that on the 7th day of November, 2000 at Chai Wan MTR Station near Exit C, Chai Wan, in Hong Kong, you did attempt to steal from the rucksack, the property of Man Wai Wah." The appellant pleaded not guilty and was convicted after trial. The appellant now appeals against the conviction only.

2. The appellant was represented by private counsel at the trial. The prosecution had called three witnesses. The appellant gave evidence himself and also called his wife to testify. Basically, the prosecution case was that at the material time and place, PW1 and PW2, who were off duty police officers, saw the appellant tampering with the rucksack carried by PW3 on her shoulder. They saw the appellant opened the left pocket of the rucksack and inserted his fingers into the pocket. He withdrew his hand when he noticed PW1 and PW2 who were watching him. PW3 also testified. She said she had closed the pocket earlier and had no idea why it became open. She further said the pocket could not have been opened accidentally.

3. The defence case was simply that no such incident had taken place. He was then travelling on the MTR with his wife. They got out of the gate and he asked his wife to add extra value to his octopus ticket. When his wife walked away, PW1 approached and asked him for his ID card, alleging that he was stealing from another. He tried to explain but in vain. He was then arrested. The appellant's wife also testified. She said she had taken the octopus ticket to increase the stored value. When she returned, she no longer saw her husband. That was the defence case.

4. Having considered all the evidence, the learned magistrate came to the conclusion that he would accept the evidence of PW1 and PW2. He said :

" ... From the outset I can say that I found the prosecution witnesses to be honest and believable and I accept what they say. PW1-2 in particular gave their evidence in a clear manner and set out what they had observed the appellant do from a short distance behind him and at the material time they had an unobstructed view of his actions. The whole time of observation was 6-7 seconds, and during this time they saw him put his left hand into the rucksack after unlocking the bag. PW3 says and I accept that the bag was locked by her and it takes some force to open it. These were minor discrepancies between the evidence of PW1-2 but such would not cause me to disbelieve them in any way, shape or form.

I had also heard and carefully considered the evidence of the appellant and his wife, DW1. I was not impressed with it. I do not accept that he just happened to be at the MTR and for no reason at all PW1 had tapped him on the shoulder, asked for his HKID card and told him he was stealing from others, and thereupon PW2 had scolded him in abusive language. I reject that.

DW1 gave evidence and I took into account her clear record when I considered same. She had left the appellant at the relevant time to go and get value added to Octopus cards. She was not present when PW1-2 saw what the appellant did with respect to the rucksack, and really doesn't take the matter too far.

The evidence here is very clear. There was no consent given by PW3 to the opening of her rucksack. I have no doubt at all that events occurred as attested to by PW1-2. They had a clear and unobstructed view from a very short distance. The appellant clearly attempted to steal from the rucksack. There can be no other inference from the evidence other than guilt. All of the necessary elements of the charge have been made out and accordingly I convicted the appellant."

5. The appellant was not legally represented at the appeal hearing. His submissions on appeal contained, inter alia, the following complaints (original in Chinese) :

(1) That he and his wife got out of the MTR gate at 3:45 p.m. The time was supported by the MTR record. At first, the police officer stated in the record of interview that the arrest had taken place at 3:35 p.m. But the oral evidence came out to be later than that. At 3:35 p.m., he was supposed to be inside the MTR so the incident could not have happened as the police officers alleged.

(2) He had instructed his lawyer to raise the time issue with the prosecution witnesses and to ask the prosecution to produce the video recording taken by the close circuit camera at the MTR station. The lawyer did not do so. The appellant suspected that there was something between the lawyer and the police behind his back.

(3) That the trial was conducted in English although he requested for a Chinese trial. He could not understand English.

(4) The location referred to in the charge was very ambiguous (含糊). The original charge alleged that the location of the crime was inside the MTR near the lift. At the trial, the charge alleged another location, which was in the lobby. The evidence between the police and the victim was different. He recalled that there was really no lift in the lobby.

(5) He was walking in front of the victim and so he could not have done the act via-a-via to the rucksack.

(6) It is not fair that the records of the time of their exit (i.e. the alleged victim and the police officers) were not produced.

(7) He had read the witness statement given by the victim. There was a difference between the content of the statement and her evidence in court regarding the time of the incident. She originally said the time was 3:30 p.m. odd but then she changed that to 3:40 p.m. odd.

6. Having considered the various points raised, I was not persuaded of their merits. The main issue in this trial was clearly the credibility of PW1 and PW2. The learned magistrate, having seen the witnesses in the witness box and having heard their accounts, accepted the testimonies of PW1 and PW2. He had explained why. On the basis of their evidence, the conviction would be inevitable.

7. Concerning the alleged differences in the time of the incident, the matter had been raised by defence counsel in his final address and the magistrate was fully aware of it. He obviously was not troubled by this aspect of the evidence. In fact, the MTR record produced explicitly stated that "Although we have taken reasonable steps to ensure that the transaction record is true and accurate, we do not accept responsibility for any errors therein." It was not surprising if there were some variation regarding the time as shown on the watches and clock used by the parties. The exact timing of the incident was not the main issue in this case.

8. The record also showed that defence counsel, who was instructed by the appellant through a private firm, had made a rather comprehensive final submission on the various aspects of the evidence. The suggestion that he might have somehow colluded with the police behind the appellant's back did not appear to be a rational criticism.

9. Regarding the issue of the production of the recording of the close circuit camera in the MTR, I took the view that even if there were such a tape, this should be dealt with at the trial and not at the time of appeal. The complaint regarding the language of the trial was unmeritorious also. Although the trial was conducted in English, I am sure, as is in all cases of trials in English, there would be proper interpretation provided by a court interpreter.

10. As to the criticism of the amendment of the charge, I have examined the record. I could find no substance in the complaint. The following were the two versions of the charge :

"Original

Chan Koon Wah, you are charged that on the 7th day of November, 2000 at Chai Wan MTR Station near Exit C, Chai Wan, in Hong Kong, you did attempt to steal the wallet and the coins bag, the property of Man Wai-wah.

Amended

Chan Koon Wah, you are charged that on the 7th day of November, 2000 at Chai Wan MTR Station near Exit C, Chai Wan, in Hong Kong, you did attempt to steal from the rucksack, the property of Man Wai-wah."

11. On the face of it, the particulars of the charges remained the same except the subject matter of the attempted theft. I failed to see how this minor amendment could be a meaningful ground of complaint in this appeal. The crucial issue remained to be a question of credibility of the prosecution witnesses. As I said, the magistrate had made a decision in this regard. I found no reason to disturb his factual findings and the decision to convict.

12. I had therefore dismissed the appeal.