HKSAR v. KWOK SAU KEUNG

HCMA311/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.311 OF 1999

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REASONS FOR JUDGMENT

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1. These are my reasons for dismissing the Appellant's appeal against his conviction and sentence.

2. The Appellant, Kwok Sau Keung, was tried and convicted of one charge of theft before a Magistrate sitting at South Kowloon. He was sentenced to 10 months imprisonment.

3. The incident, according to the prosecution, took place shortly before 7 p.m. on 31 August 1998. The 1st prosecution witness, who was also the victim of the charge, bought a packet of cigarette at a store at Kwun Chung Street Market. As he went out of the shop, he saw a wad of banknotes on the pavement. Then he saw a person whom he later identified as the Appellant, came up to the banknotes and picked them up. The lighting condition of the spot where the banknotes were was described by the witness as : "very dark". After picking up the money, the Appellant asked the witness not to say a word and in return he would share the money with him. As they started to walk away, a tall man approached them and alleged that they had taken his money. The Appellant tried to explain to the tall man by showing the contents of a bag which he was carrying and this was followed by the Appellant taking the witness' wallet from him and showed it to the tall man. The tall man took the wallet, examined it and then returned it to the witness. There followed a dispute over the ownership of the banknotes and the tall man suggested the three should go to the police station to resolve the dispute. The witness and the Appellant went up the escalator leading to Kwun Chung Market. The tall man insisted that the two of them should accompany him to the police station. Not wanting to give himself any trouble, the witness decided that he should have no more of it and left the other two men. As he was walking along Shanghai Street, he sensed something was amiss and checked his wallet. He found that $700 in $100 notes were missing from the wallet. He had last seen the money when he bought the cigarette from the store. Immediately, the victim tried to look for the two men in the vicinity. Shortly afterwards he located the Appellant. He immediately confronted the Appellant who denied having anything to do with it. The Appellant also denied that he had ever met the victim previously. The police was summoned to the scene and the Appellant was arrested and searched. Under caution, the Appellant denied stealing the victim's money. The police officer gave evidence as the second prosecution witness.

4. The Appellant elected to give evidence at his trial. It was his case that he had never seen the victim until he approached him in the street and accused him of stealing $700 from him. He told the court that the victim had made a mistake and he had never seen him before.

5. The only issue before the learned Magistrate was the correctness of the victim's identification of the Appellant as the person who had taken the wallet from him. Having considered the evidence before him, the Magistrate was satisfied with the quality of the identification evidence. He found that the Appellant and the tall man had concocted the trick on the victim together. He rejected the Appellant's version of the incident and convicted him of the charge.

6. In the first of the four grounds of appeal before this Court, the learned Magistrate was criticized for relying on the purported identification of the Appellant by the victim which was made under difficult circumstances. In his examination-in-chief, the victim described the lighting condition at the spot where the Appellant picked up the wad of banknotes as "very dark". Counsel for the Appellant submitted that the learned Magistrate should not have relied on such poor quality evidence of identification.

7. In my view, this is hardly a case of a fleeting glance and under very difficult lighting conditions. As correctly pointed out by the learned Magistrate, the victim had seen the Appellant at a close distance for a number of minutes before they separated. There was sufficient time to enable the victim to make a proper observation of the Appellant. Although there was no evidence as to how long it was that the victim had been in the company of the Appellant, the duration can clearly be inferred from the account given by the victim. The learned Magistrate found that the victim was able to make an accurate identification of the Appellant as the man who had picked up the wad of notes and later on took the wallet from him. He had come to this conclusion after careful scrutiny of the quality of the identification evidence. The first ground of appeal must therefore fail.

8. The second ground of appeal was that the Magistrate had concluded, without proper basis, that the Appellant and the tall man had concocted the trick on the victim together. The entire incident has a flavour of a carefully planned confidence trick. As the Appellant was picking up the wad of notes and suggesting to the victim that they should share the proceeds, the tall man materialised. Subsequently in an act of dubious vigilance, the Appellant took the wallet from the victim and showed it to the tall man. It must have been in the mind of the learned Magistrate that this action is totally unwarranted. There is simply no reason at all for the Appellant, knowing full well that the wad of money did not belong to the victim, to show the tall man of the contents of the victim's wallet. This, in my view, defies any logical explanation apart from the fact that it would have afforded the tall man an opportunity to help himself to the victim's money in the wallet. The learned Magistrate was correct in making the inference as he did.

9. The third ground of appeal alleged that the Magistrate had failed to consider the defence case properly. In his Statement of Findings, the Magistrate was satisfied that the victim had given an accurate account of the events and based on this account, the Appellant was convicted. Although the learned Magistrate did not state specifically that he disbelieved or rejected the Appellant's evidence, it must have been the case. I cannot see any substance on this ground of appeal.

10. On the fourth and final ground of appeal, the learned Magistrate was criticized for failing to give proper regard to the Appellant's working history, financial background and other personal particulars. The learned Magistrate had stated specifically in the Statement of Findings that he had borne in mind Appellant's good character and its related significance. He went on to say that he had also taken note of the fact that the Appellant had protested his innocence throughout. There is no rule of law or of practice which requires a magistrate to take into account a defendant's working history, financial background and other relevant personal particulars in order to assess his credibility. In the present case, the learned Magistrate stated that he had given consideration to the Appellant's good character. In so doing, he must also have considered the evidence given by the Appellant in the course of the trial. It was not entirely fair to criticize the learned Magistrate for not giving adequate consideration of the defence evidence. This last ground of appeal must also fail.

11. For the reasons given, the appeal against conviction is dismissed.

Appeal against sentence

12. The 10-month prison term was said to be manifestly excessive. The Magistrate found that this is a fairly sophisticated trick which had taken a degree of planning. This, I agree. He equated the present charge to that of a pickpocketing offence which would carry a sentence of between 12 to 15 months. I would say that the criminality involved in the case is no different from a pickpocket offence which involves more than one person in its execution when one person would try to distract the victim while the accomplice would help himself to the victim's properties. The learned Magistrate was correct to adopt a starting point of 12 months which he reduced to 10 months to reflect the clear record of the Appellant. It cannot be said that the 10-month term is manifestly excessive.

13. The appeal against sentence is also dismissed.