HCMA000445/1984
IN THE SUPREME COURT OF HONG KONG
APPELLATE JURISDICTION
Magistracy Appeal No. 445 of 1984
BETWEEN
LI KAM SHU
Appellant
and
THE QUEEN
Respondent
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Coram: Mr. Justice Barnes in Court
Date of Hearing: 19th September 1984
Date of Judgment: 12th October 1984
____________
JUDGMENT
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1. The Appellant was convicted on two counts: one for entering a building as a trespasser and stealing therein and the other for obtaining property by virtue of a forged instrument.
2. At the conclusion of the hearing of his appeal I dismissed the appeal insofar as it related to the second count but reserved my decision in relation to the first.
3. Having now had the opportunity to read the whole of the learned magistrate's record I have come to the conclusion that all of his findings of fact are unassailable. Those findings are, briefly, as follows:-
(1)
PW1 and the Appellant are fellow clansmen.
(2)
The Appellant had visited PW1's house in LAM TEI on several occasions before 25.4.84, the date of the alleged offence.
(3)
On 24.4.84 the Appellant obtained PW1's signature on a document "paying tribute to the (Appellant's) deceased uncle".
(4)
Between 7.00 a.m. and 10.50 a.m. on 25.4.84 the house of PW1 was entered and certain property which included his savings bank passbook with the Hongkong and Shanghai Banking Corporation was stolen from under his mattress.
(5)
At about 8.40 a.m. on 25.4.84 the Appellant presented PW1's passbook at the LAM TEI branch of the Hongkong and Shanghai Banking Corporation and fraudulently withdrew $6,000 from the account leaving a small remaining balance.
4. On the basis of those findings the magistrate concluded that the possibility that the (Appellant) was other than the burglar was fanciful. Mr. Chan, for the Appellant, has submitted that it is not fanciful to suggest that someone else could have been the actual trespasser and thief whilst the Appellant was the handler. Although it could be possible to conclude that the findings do not conclusively show that the Appellant was the person who actually trespassed and stole nevertheless they do indicate the sure conclusion that he was either the actual trespasser/thief or he counselled and procured the actual trespasser/thief to commit the offence. In either event, under section 59 of the Criminal Procedure Ordinance, he was guilty of the offence for which he was convicted.
5. It follows, in my view, that he was rightly convicted. His appeal against that conviction is also dismissed.
( E.C. Barnes )
Judge of the High Court
Representation:
Mr. A.S. Hodge, Senior Assistant Crown Prosecutor, for the Crown.
Mr. Peter C.K. Chan (Messrs. Chan & Chuk assigned by D.L.A.) for the Appellant.