HKSAR v. LEE SUI BUN AND ANOTHER

HCMA1204/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1204 OF 2003

(ON APPEAL FROM FLCC OF 2003)

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JUDGMENT

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1. This is an appeal by each appellant against his conviction only.

2. The appellants were jointly convicted after trial of an offence of theft contrary to section 9 of the Theft Ordinance, Cap. 210. They were charged as follows :

"LEE Sun-bun and TUEN Kwok-cheung, you are charged that on the 28th day of March, 2003 at the staircase [Choi Yuen Road] at KCR Sheung Shui Station, San Wan Road, Sheung Shui, New Territories, in Hong Kong, you did steal one wallet, the property belonging to another person."

3. The facts of the case as found by the magistrate were that the appellants had been at Sheung Shui Kowloon-Canton Railway Station, and they followed the victim to a descending escalator leading to a train platform. The 1st appellant went immediately ahead of the victim onto the escalator and the 2nd appellant was standing next to the victim and to his left behind the 1st appellant.

4. When the escalator reached the bottom, the 1st appellant bent down, apparently for no observable reason, and caused an obstruction to those behind him. Seven to eight people built up in a small group behind the 1st appellant including the victim and the 2nd appellant. At that stage, PW1, a police officer who had been on anti-theft duty in the Closed Circuit Television Room of the railway station had, after viewing the initial stages of the 1st and 2nd appellants following the victim, gotten suspicious and gone to the scene and arrived at the top of the escalator. He said in his evidence that he then saw the 2nd appellant's hand move from the left side of the victim and go behind the back of the victim towards the victim's right-hand front pocket. PW1 then saw the 2nd appellant's right hand return holding a wallet-like object. PW1 then rushed down the escalator towards the appellants and the victim and shouted "Don't move". He then saw the 2nd appellant throw the wallet-like object towards the empty ascending escalator. PW1 then chased and apprehended both appellants. Shortly after, other police officers appeared on the scene. A search was made for the wallet, if that is what it was, but it was never located.

5. The victim, although spoken to at the scene after the arrest of the appellants, for some reason did not appear at trial to give evidence.

6. Neither appellant gave evidence at trial and based their cases simply on an attack on the credibility of PW1's evidence and on the assertion by their counsel that the evidence was insufficient to warrant any conviction.

7. Mr MacKenzie-Ross appears for both appellants before me. He has provided some six grounds of appeal against conviction, but upon reflection I need only to deal with one complaint made by him.

8. That complaint concerns the magistrate's apparently inferring, without giving reasons, from the evidence before her that the appellants had participated in a joint enterprise to steal the victim's wallet. That complaint is set out in the appellants' original fifth ground of appeal and is as follows :

"5. That there was no or no sufficient evidence upon which to convict the Defendants of a joint enterprise. The learned Magistrate gives no reason for her finding or this conclusion."

The whole of the magistrate's reasons for her findings are effectively contained in one paragraph of her Statement of Findings as follows :

"23. I find that both Defendants knew each other. They have participated and played in different role in the commission of the pickpocketing. Each has acted in concert with another. They are both guilty of the offence as charged."

I must say that this single paragraph, in encapsulating all of the magistrate's findings other than her earlier brief finding that the only prosecution witness, PW1, was a credible witness, was remarkably sparse.

9. She has made no mention of the issues which arose in the case and specifically no mention of why she concluded not only that the appellants knew each but that they were acting together in the theft. In this case a number of fundamental issues arose.

10. The first issue was whether there was a theft from the victim. The victim did not give evidence, nor was the "wallet-like object" as PW1 described it, ever recovered. The trial had proceeded only on the basis of the evidence of PW1, the police officer, who was unable to give evidence that he saw the 2nd appellant actually reach into the victim's pocket and take the wallet, but could only give evidence that he saw the 2nd appellant's right hand return from the right side of the victim holding a wallet-like object. Accordingly not only the nature of the object stolen but also whether it had in fact been stolen was in issue.

11. The second important issue was the question of joint enterprise and whether on the evidence before her the magistrate could properly infer the 1st appellant was acting together with the 2nd appellant in stealing from the victim. It should be emphasized so far as the 1st appellant is concerned that the only activity performed by him was to bend down in some way and so cause an obstruction at the exit from the escalator.

12. I would have thought that the findings required, on such fundamental issues in the case against the appellants, some reasons being provided by the magistrate as to how she had arrived at those findings.

13. Fundamentally the cases against the appellants, and particularly against the 1st appellant, required a series of important inferences to be drawn. Nowhere in the magistrate's reasons for verdict or Statement of Findings is there any mention of her drawing any inferences or of how she had arrived at any inference she had drawn against either appellant.

14. In the often-cited case of Lam King Ming, Cr. App. 601/1979, O'Connor J said :

"The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such 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 an appellate court to perform its duty."

15. The salient points in this present case were not dealt with. And in the circumstances of the case it was simply not enough for the magistrate to state that she accepted the evidence of PW1 and thereby to be said to have sufficiently informed the appellants as to how she arrived at her decision. I might further add in that regard that much of PW1's evidence was in issue. He was challenged as to his reliability on a number of points. His evidence was criticised as being guesswork and assumption. The magistrate in her Statement of Findings set out no reasons for her acceptance of his evidence in the face of those challenges.

16. Magistrates are busy people. It is very often necessary for their reasoning, in proceeding to a finding, to be stated briefly. But some reasons, even if sparse, must be given. The more complex the issues obviously the more reasons one could expect to be provided.

17. In the present case, given the relative complexity of the issues involved and the fact the evidence before the court comprised only that of a police officer with an imperfect view of what happened, whose evidence was challenged on a number of matters, there were simply insufficient reasons given to allow a reader of the magistrate's Statement of Findings to fairly know on what basis the findings of guilt had been arrived at and how the important issues which were raised by the appellants' cases, including those as to the reliability of the prosecution evidence, were resolved.

18. Further, and somewhat worryingly, in reciting the evidence given by PW1 the magistrate incorporated that part of his evidence which concerned PW1 asking anyone present at the scene of the arrest of the appellants whether they had lost a wallet and the victim having raised his hand in an affirmative reply. That was hearsay, and it may have formed a part of the magistrate's deliberations, as she simply apparently adopted all of PW1's evidence. If it did, a further and separate cause for concern in the appellants' convictions arises. Whether that part of PW1's evidence did in fact form part of the magistrate's reasoning is not revealed by the contents of her Statement of Findings.

19. In my view, for the above reasons, the magistrate's Statement of Findings as they stand cannot establish that the convictions of the appellants were safe and satisfactory. Rather than remit the case to the magistrate for her to provide further reasons for her findings or adopt any other course, given the circumstances of the case, I simply quash the convictions of each appellant.