HKSAR v. WONG NGA MAN WINNIE

HCMA 838/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 838 OF 2003

(ON APPEAL FROM WSCC 548/2003)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant was convicted after trial of one charge of theft and this is her appeal against conviction. The Appellant was represented at trial by Mr Percy who also represented her on this appeal.

2. The facts in the case show that on the date of the offence, PW1 went to the Dah Sing Bank at about 3:05 p.m. and had left behind on the counter, a bag containing a Waterman ball-pen which was a gift to him from PW2 and a shadow-boxing book which was returned to him by PW2. Later on that day the matter was reported to the police, that was on 17 December.

3. On 1 April the following year, PW2 identified a black coloured Waterman ball-pen which was produced in court as Exhibit P2 being as a gift that she had given to PW1. Her evidence was that the Waterman ball-pen was worth about HK$500. This Exhibit P2 has been seized from the Appellant's home on 16 March by PW3 who is a PC 34338. It is an admitted fact which is produced as Exhibit P1 that the Appellant did go to the Dah Sing Bank on 17 December at around 3:28 p.m.

4. PW3's evidence was that he and PW4, a Sergeant 6479 had gone to the Appellant's home on 16 March to conduct an investigation. PW3 said he made enquiry to the Appellant and the Appellant then admitted to him that she had taken away a bag at the bank in question but she thought that it was not wanted. She further said that she knew there were a pen and a shadow-boxing book inside the bag. So PW3 then arrested and cautioned the Appellant and the Appellant then further admitted that she had taken the book and the pen out of momentary greed. The Appellant then admitted that she had thrown away the book and then she went into a room to get the Exhibit P2 out for the police officer. The Appellant then asked for a chance saying that the pen had not been used.

5. At the request of the defence, the prosecution also tendered PW4 for cross-examination and PW4 essentially corroborated the evidence of PW3 that he did go to the Appellant's home. After the prosecution witnesses had given their evidence, the Appellant elected to give evidence. The Appellant's evidence was that when the police officers arrived at her home, she had told them that she did not know what they were taking about, but she had told the police that she had a collection of pens in a jewellery box so she went to take out six to seven pens including some Dupont, Mont Blanc and Waterman, because she said she did not understand what the police were looking for. At that stage PW3 picked up Exhibit P2 and talked with PW4, that Exhibit P2 was her husband's property, she said, and she had kept it in the safe at home all along. On that day PW3 then seized the exhibit and brought her back to the police station.

6. The Appellant denied making any admission and denied that there was any formal arrest and caution by the police. She denied stealing the pen and the book in question. Both PW3 and PW4 had disagreed with the case of the Appellant when it was put to them.

7. The learned Magistrate after evaluating the evidence at page 16 of the appeal bundle, had said that he found PW1 and 2 were honest and reliable witnesses. The learned Magistrate in the next paragraph then said that he gave weight to the admission made by the Appellant. He did not believe the Appellant's version of events.

8. The ground of appeal put forward by Mr Percy is basically that the Appellant's complaint was that PW3 was not able to say when he made his notebook entry and PW4 had failed to make any record of the admission although he did record other events, so the complaint therefore is that the learned Magistrate had failed to explain how he could come to conclusion that PW3 and 4 were reliable when they came to recollect the Appellant's verbal admission.

9. My attention had been drawn to the transcript of the trial and initially Mr Percy complained that the admission was not written down at all, then when he drew my attention to the evidence of PW3 about his notebook, it became clear that what PW3 was saying was that, he did make an entry of all that had happened on that day in his notebook but he could not recall the actual time when he had made that entry, but he had made it on 16 March.

10. Mr Percy, in cross-examination, did not put it to the witness that he had failed to make a record of this admission in his notebook. It was obvious that when Mr Percy was cross-examining this witness he had the notebook in front of him. The complaint therefore about the admission not having been written down and that there was no record of it, therefore does not hold water.

11. Secondly, Mr Percy complained that the learned Magistrate had failed to deal with the issue of PW3's acknowledgement of having a pre-conceived notion of the Appellant's guilt. This was set out in the perfected Grounds of Appeal against conviction, but Mr Percy did not make any submission on this. But, I have in any event looked at the matter of PW3's evidence, it is clear that this pre-conceived notion is merely a suspicion; it is obvious that when the police officers went to the Appellant's home they were investigating the case, so I do not find that as a reasonable ground of appeal.

12. The third ground as set out in the perfected ground had alleged that the learned Magistrate did not appreciate or guard against the risk of a miscarriage of justice when the prosecution case was based solely on confession. Mr Percy then said that the ownership of the pen or the identity was not reliably proved, which is true as the pen is just an ordinary Mont Blanc pen. According to the evidence of PW2, she said she gave a blue pen to PW1 and PW1 never saw the pen because he had not opened his present yet.

13. But, the learned Magistrate had relied on the admission of the Appellant and the learned Magistrate was well aware that no written record of admission or caution statement had been produced before him. In assessing the evidence of the police officers, he gave weight to the admissions and he had no doubt that the Appellant had made the admissions to the police officers at the time when they came to her home.

14. I am informed that the learned Magistrate did ask defence counsel if a voire dire was necessary and if it fell within the Thongchai case. I am told that counsel for the defence said to the learned Magistrate that it was not necessary to hold a voire dire on the matter on two occasions, in fact, and therefore, a voire dire was not held in this case. So the learned Magistrate was totally justified when assessing the evidence to come to the conclusion that he believed the officers' evidence and that the Appellant did, indeed, tell the police officers that she had taken away the ball-pen and that she had done it out of momentary greed. The learned Magistrate was therefore within his power to rely on that admission when convicting the Appellant.

15. There was submission from Mr Percy that PW4, the Sergeant, was giving hearsay evidence in relation to the production of the pen by the Appellant to PW3. I pointed out to him that if that was the case then his question to PW4 did not make sense because he had actually suggested and put to PW4 that the Defendant never admitted theft of the pen in his presence and PW4 disagreed.

16. The learned Magistrate at the end of the day was entitled to consider the evidence of PW3 and 4 and considered that both of them were honest, reliable and straightforward and that their evidence is essentially corroborated with each other.

17. I do not see any justifiable ground at all in this appeal. The grounds were totally not persuasive and so the conviction stands and the appeal is dismissed.