HKSAR v. WONG KING WAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 995 OF 1998

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J U D G M E N T

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1. This is an appeal against the conviction of the appellant after trial in Tuen Mun Magistracy of two offences of theft. At the outset of the trial the appellant faced one charge of theft and one charge of robbery but upon the conclusion of the evidence and having been addressed on the matter by the appellant's solicitor the learned Magistrate convicted the appellant not of robbery but of the statutory alternative offence of theft.

2. The facts of the offences, as found by the learned Magistrate in her statement of findings, are as follows:-

"The defendant was known to PW1. Previously, they were schoolmates. Since leaving school in 1995, until the date of the offences, PW1 had on occasions seen the defendant in the street ...... Both are of the same age. At the time of the trial they were 17 years old.

On the 24th May 1998 at around 6.30 p.m. while PW1 was alone walking along Citimall' at Yuen Long, the defendant and another male whom PW1 did not know, approached him. The pair of them asked PW1 to follow them inside a toilet. Having done so, the defendant and the unknown male then accused PW1 of not having repaid money to an ex-class mate named Wong Chor-To. PW1 denied the accusation and retorted that the money had been repaid. Ignoring PW1's reply, the pair went on to ask PW1 to take out his wallet for them to see how much money PW1 had. Having looked into the wallet they said they would use what was in it as repayment. The unknown male then took $220.00 from PW1's wallet. The defendant then asked PW1 to hand over his mobile phone. PW1 did so. The defendant said that the mobile phone would be taken as security until PW1 had repaid all the money. The pair then left with PW1's money and mobile phone.

PW1 said he was frightened by their attitude and unfriendliness which caused him to comply with their demands. I believe PW1. It was a daunting experience. There was every reason for him to be apprehensive having regard to the circumstances. I find that PW1, having denied that he owes any money to Wong Chor-To (an ex-classmate), the demand to see his wallet was in itself intimidatory.

I have no doubt that PW1 did not voluntarily hand over the money and mobile phone. I do not find that any of these items were taken with his agreement, tacit or otherwise. Taking and removing all PW1's money from the wallet and impounding the mobile phone in the pretense of retaining it as a security was, in the situation as outlined, theft as it warrants the inference that the defendant intended to permanently deprive PW1 of those articles.

On the 28th May 1998 at about 6.40 p.m. whilst PW1 was at Sai Ching Street, Yuen Long, on his way home alone, he was once again approached by the same pair that had approached him on the 24th May, namely, the defendant and the same unknown male. The pair again accused PW1 of not having repaid the debt. They once again asked PW1 to hand over his wallet. PW1 once more insisted that he had repaid the money. However the unknown male said that the money paid previously was just the interest on the loan. They further demanded that PW1 give them his work address and telephone numbers. They told him not to change his job or to runaway. On this occasion they relieved him of a sum of $160.00 by taking it from his wallet. PW1 said he was scared at the time thinking he would be assaulted if he did not comply. The pair went on to say that PW1 would have to repay $1,000 a month for 10 months. The defendant and the unknown person then left.

PW1 admitted that he had borrowed $150.00 from his ex-classmate Wong Chor-To some four years ago. However he had repaid this sum of money directly to Wong Chor-To this year.

After the first incident, PW1 made a report to the police that he had lost his mobile phone. He made no report about the incident that happened between himself, the defendant and the unknown male.

After the second incident, PW1 went to make a report to the police about the above two incidents of the 24th and the 28th of May 1998."

3. The defence case was one of alibi in respect of both offences.

4. On behalf of the appellant Ms. Sun, who did not appear in the court below, has sought to argue four principal grounds of appeal and I shall deal with them in turn.

Ground 1

5. Some unedited 'brief facts' of the case were before the learned Magistrate at her request (presumably for her to have some idea of what the case was about) before the trial commenced. Some of those facts, which the prosecution did not in fact seek to prove during the course of the trial, were prejudicial to the appellant, in particular the recited fact that the appellant had identified the defendant at an identification parade.

6. I can deal with this ground of appeal shortly. The fact of the identification parade, given the evidence that PW1 and the defendant were known to each other was irrelevant and the learned Magistrate clearly ignored it. There was nothing prejudicial to the appellant in the 'brief facts' which were seen by her and this ground of appeal must fail.

Ground 2

7. "The question of honesty was never considered". That simply is not the case. The question of dishonesty of the appellant was plainly paramount in the learned Magistrate's mind. It was not necessary in my view for her to add to her conclusion that the

"taking and removing of all PW1's money from the wallet and impounding the mobile phone .... was, in the situation outlined, theft as it warrants the inference that the defendant intended to permanently to deprive PW1 of those articles"

8. The additional inference that such "taking and removing" was dishonest. On the evidence before her, which she accepted, it could not have been otherwise. As the learned Magistrate said on page 7 of her statement of findings -

"Clearly the defendant and the other male on coming to know of the debt, found this as a profitable mode of using (that debt) to their own advantage ...."

9. This second ground of appeal must fail.

Ground 3

"Since the defence raised was alibi, the question of identification must be an issue".

10. Initially I confess that I had difficulty in understanding and following this ground of appeal. However, if I have now understood it correctly, Ms. Sun's complaint is two fold; namely that the learned Magistrate did not properly address the question of identification in her findings and nor did she say whether or not she found support for that identification from her rejection of two of the appellant's alibi witnesses.

11. With respect this ground of appeal is misconceived. Of course when sitting as a Magistrate care must be taken in directing oneself about support for poor identification evidence to be derived from the rejection of an alibi. However in this case the identification evidence was not poor. There was clear evidence of identification by recognition and the learned Magistrate dealt fully with that before going on to say on page 8 of her statement of findings as follows:-

"I bear in mind that whenever a defence of an alibi is raised, it does not follow that a conviction must result because that defence has been negatived or disbelieved. The legal burden of proof remains throughout on the prosecution. I must be satisfied beyond a reasonable doubt that the articles the subject of the charges were stolen from the victim in the circumstances outlined by him and that the defendant and a person unknown were the perpetrators of the offences".

12. This ground of appeal also fails.

Ground 4

13. This ground of appeal relates only to the appellant's conviction of the second offence of theft. The ground is that the learned Magistrate refused an adjournment to enable two alibi witnesses to give evidence for the appellant. These were not the same witnesses who were members of the appellant's family and who in fact gave alibi evidence in respect of the first offence and whose evidence was disbelieved. The two witnesses in question were student friends of the appellant who on the first day of the trial failed to respond to witness summonses issued by the defence. The learned Magistrate dealt with this ground of appeal in some illuminating detail as follows:-

"After the above three witnesses completed their evidence on the 10th September, Mr. Vaughn, .... for the defendant, applied to adjourn the case to another date as another two defence witnesses whom the defendant sought to call had not attended Court. I refused his application.

I refused the adjournment as:-

(i) The witnesses had failed to attend on the first day of trial (1st September,) despite both of them knowing of their requirement to attend. One of the witnesses, Mr. Tang King Man, acknowledged receipt of a witness summons for that date and the other Chow Chung Hei was informed by PC50200, the summons officer, that he should attend Court on the 1st September and he also acknowledged this;

(ii) I had already adjourned the case from the 1st September, to facilitate the defence to secure the attendance of the defence witnesses;

(iii) The attendance of the witnesses was not secured by the defence, as no witness summons was issued for the adjourned hearing, despite knowledge by the defence that the witnesses had not attended on the 1st September;

(iv) The explanation as put forward by the defence on the 10th September that Mr. Tang had not attended on the 1st September was because he had overslept, was totally inexcusable and unacceptable;

(v) Both witnesses had promised the defence to attend on the adjourned hearing of 10th September, yet by 3.30 p.m. that day they had still not attended and

(vi) The defence witnesses had been given two separate occasions to attend court but failed to make an appearance on both dates."

14. It was then in the light of those circumstances that the learned Magistrate refused the application for a further adjournment. Given those circumstances, or the history of the matter, it is my view that it would have been surprising if she has been prepared to adjourn the matter yet again, bearing in mind the delay that this would have caused.

15. In any event the case in relation to the second offence was simple and straight forward. The issue was whether on 28th May 1998 the defendant had stolen money from the victim. The defendant was not prevented from giving his version of events by the ruling of the learned Magistrate which version was that he had not.

16. I have not been given any good reason for interfering with the discretion exercised by the learned Magistrate and accordingly this ground of appeal must also fail.

17. For all of these reasons the convictions of the appellant were neither unsafe nor unsatisfactory and his appeal is dismissed.