HKSAR v. Tuvdendorj Lkhagvabayar

HCMA 501/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 501 OF 2015

(ON APPEAL FROM ESCC NO 190 OF 2015)

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J U D G M E N T

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Background

1.The appellant was charged with one charge of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210.  On 23 July 2015, the appellant was convicted after trial of the alternative offence of “Handling Stolen Goods”.  He was sentenced to nine months’ imprisonment.

2.The appellant filed a Notice of Appeal against Conviction on 27 July 2015.

Prosecution Case 

3.On 17 January 2015 at about 5 am, while PC 10865 (PW1) was conducting plainclothes patrol duty in the Lan Kwai Fong area with his teammates, he spotted the appellant going into a sitting-out area near a refuse collection station and looking around thereat.  The appellant then sat down on a bench, looked around him and picked up a bag (“the Bag”) on the ground near the leg of the bench.  The appellant then left with the Bag.

4.The appellant then went to D’Aguilar Street where there was a taxi (“the Taxi”) with the appellant’s five friends inside.  After talking to the people inside, the appellant went to get another taxi behind.  At this juncture, the appellant was intercepted by PW1.  Upon searching, 3 mobile phones (2 iPhones and one white mobile phone with brand‑name Zopo) and a UK driving licence in the name of “Tang, Raymond” were found in the Bag.  Although the appellant claimed the ownership of the three mobile phones found, he was not able to switch on the 2 iPhones with the password required.  The white Zopo mobile phone could not be turned on at all. When the appellant was asked if he knew the owner of the UK driving licence, the appellant did not provide an answer.  Thus, the appellant was arrested.

Defence Case

5.The appellant elected to give evidence but did not call any defence witness.  He also relied on his video-recorded interview.

6.The appellant claimed that he and his friends had been drinking in the sitting-out area since 9 pm.  His friend Ganaa entrusted the appellant with the Bag as he wanted to dance somewhere else, but the appellant forgot how he handled the Bag thereafter as he was too drunk.  In the small hours of the day, they decided to take a taxi to go home.  However, they realized that they had left behind two friends, Khurlee and Oleg, and decided to turn back to pick them up.

7.When the Taxi arrived at the spot where it was found by the police, the appellant and his friend Amnaa got off and went back to the sitting-out area.  He found Khurlee sleeping on the bench and Oleg was just sitting.  The appellant found that the Bag was on the ground and he picked it up.  All of them then went back to the Taxi together.  As the Taxi was full, the appellant intended to take another taxi.

8.The appellant claimed that the Bag did not contain the three mobile phones and the UK driving licence was not taken out by the police to show him.  For the 2 iPhones, he purchased them from an Arabian earlier in the public toilet near the sitting-out area at $500 per piece.  As to the white Zopo mobile phone, he purchased it from a Mongolian friend for his own use.

Findings of the magistrate

9.The magistrate carefully analysed the different details between the versions of PW1 and the appellant.  The magistrate rejected the appellant’s version for the detailed reasons set out in his Statement of Findings (at pages 18G to 20P of the Appeal Bundle).

10.On the other hand, the magistrate accepted the evidence of PW1.  The magistrate found that it was the plan of the appellant and his five friends that, before leaving, the appellant went to retrieve the Bag in the sitting-out area while the others were waiting for him in the Taxi. The three mobile phones were put together with an obviously stolen driving licence in the Bag which was hidden away to be collected later.  Therefore, the magistrate found that the three mobile phones were also stolen property.

11.By retrieving the Bag on purpose, the appellant must have knowledge and belief of the nature of the goods inside and that they were stolen goods.  The magistrate found that the present case was not a case of “Theft by Finding”, as the case put by the prosecution in the beginning.

12.The magistrate was satisfied beyond reasonable doubt that the appellant knew the Bag contained stolen goods, namely the three mobile phones, went to retrieve it and intended to take it away.  As a result, the magistrate found the appellant guilty of the alternative offence of “Handling Stolen Goods”.

Grounds of appeal of the appellant

13.In the appellant’s Notice of Appeal against Conviction dated 27 July 2015, the appellant did not set out any concrete grounds of appeal.  The appellant simply claimed that he had not done anything wrong.  In his oral submissions at the hearing of the appeal, the appellant supplemented that by saying the magistrate was wrong to have accepted PW1’s evidence.

Discussion

14.The major issue in the present case is the credibility and reliability of the evidence of PW1 as well as that of the appellant.

15.An appeal under section 113 of the Magistrates Ordinance, Cap 227, is conducted by way of rehearing on the evidence before the trial court.  Where factual findings are concerned, it must be recognized that the magistrate had the advantage of receiving the evidence first‑hand, while the judge on appeal can only rely on the Statement of Findings and transcript of the evidence, if any.  The credibility and reliability of any particular witness is within the assessment of the magistrate.  It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or where the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction will be rendered unsafe and/or unsatisfactory.

16.In other words, the appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong [see: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, paragraph 65].

17.In the present case, the magistrate has carefully analysed the evidence of PW1 and the appellant.  He has given detailed reasons as to why the evidence of PW1 was preferred but not the appellant’s.  I agree that the analysis of the magistrate is comprehensive and reasonable.  The magistrate did not solely rely on the allegations of the prosecution; rather, he made his own findings of fact and convicted the appellant of the alternative offence of “Handling Stolen Goods”, which best fit into the factual matrix of the present case.  The magistrate has also given opportunity for the Defence to make submissions on the alternative verdict at the closing submissions stage.

18.I agree with Mr Derek Wong, counsel for the respondent, that the findings of the magistrate are sound and there is nothing illogical or inherently improbable in his findings.  In the circumstances, the conviction of the appellant should be upheld.

19.During the hearing of the appeal, the appellant orally applied to this court to receive the evidence of one Gann‑erdene (ie “Ganaa” referred to in the Statement of Findings).  The appellant submitted that he was unable to contact Ganaa at the time of the trial.

20.The application by the appellant is refused.  I agree with the prosecution that no reasonable explanation has been given by the appellant as to why no attempt had been made to contact Ganaa before the trial.  Further, I agree that the evidence of Ganaa, even if received, would not afford any ground for allowing the appeal.  The crucial finding by the magistrate in this case is that, contrary to the defence case, the 3 mobile phones were inside the Bag at the time when the appellant picked up the Bag in the sitting-out area, not whether the appellant had been entrusted with the Bag by Ganaa in the first place.

Conclusion

21.For the reasons stated above, the appellant’s appeal against conviction is dismissed.

Mr Derek Wong, SPP of the Department of Justice, for the respondent

The appellant appeared in person