HKSAR v. Ahmad Fiaz

HCMA 400/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 400 OF 2015

(ON APPEAL FROM TMCC 901 OF 2015)

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J U D G M E N T

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1.The appellant with another defendant of the case (1^st defendant, D1) were jointly charged with one count of Theft, contrary to section 9 of the Theft Ordinance, Cap 210. The appellant was the 2^nd defendant at trial. After a 4-day trial before a Deputy Magistrate[1] (the magistrate), the appellant was convicted as charged and was sentenced to 7 months’ imprisonment, while D1 was acquitted after trial.

2.The appellant now appeals against his conviction and sentence.

Facts

3.Between 1140 hours to noon on 29 March 2015, Madam Lam rode her bicycle from her home to Kam Tin West Rail Station.  When she arrived at the station, she found that the zipper of her rucksack was broken and a black waist bag she placed inside was missing.  She did not make a police report immediately as she was busy for work.  The following items were inside the said waist bag:

(a) RMB6024;

(b) HKD100;

(c) Two mobile phones;

(d) Two Sheng Zhen Tong stored value cards; and

(e) some other cards which had expired.

4.At about 3 pm on that same day D1 made a report to the police that he found his friend the appellant suspicious, as the appellant had picked up a lot of money.  He led police officers to the appellant.  When the appellant was located, Madam Lam’s two mobile phones and some money were found in the appellant’s possession. 

5.Approximately half an hour later D1 and the appellant respectively led the police officers to two separate locations where D1 said he dumped the black waist bag and the appellant said he dumped the cards. Thereafter the officers were taken to a bus stop where the waist bag was picked up from. 

Defence Case

6.D1 and the appellant elected to give evidence.  A defence witness (DW4) was gave evidence.

D1’s evidence

7.D1’s evidence was that on the material date, he met with the appellant to collect his bicycle from the appellant.  When they met, the appellant told D1 that he had HK$50,000.00 cash (as noted by the magistrate, this was the amount said by D1).  The appellant left after returning the bicycle to D1. 

8.Upon collection of his bicycle from the appellant, D1 found an empty bag (the black waist bag belonging to Madam Lam) in the front basket of his bicycle.  As D1 was unable to get in touch with the appellant, he then disposed of the bag at the refuse collection point.  As the appellant did not answer his calls, D1 made a police report saying that he had suspicions about a person who had HK$50,000.00 and he would take the police to that person.  D1 later met with the police officers and led them to the appellant. 

9.D1 denied that as his request to share the money found by the appellant was rejected, he was disgruntled and therefore made a report to the police about the matter.  D1 claimed he threw the black waist bag away as he was concerned the appellant had used his bicycle to do something wrong.

The appellant’s evidence

10.The appellant stated whilst riding D1’s bicycle between 11:00-11:30 am on the material day he saw a black waist bag and another yellow bag at the bus stop.  He picked up both bags.  He did not open the bags until he met D1 as he was returning D1’s bicycle to him. He then found the money in the waist bag and the mobile phones in the yellow bag.  He did not dispute that these items belonged to Madam Lam.

11.The appellant claimed that he wanted to return the money and mobile phones to the owner so he took them out from the bag and placed them inside his pockets.  He left the bags in the basket of the bicycle and returned the bicycle to D1.  D1 discarded the black bag somewhere.  He and D1 took the cards out from the bag and threw them away. 

12.When the appellant took the money out of the waist bag, D1 had requested a share of the money but he declined as he knew D1 would spend the money.  Later D1 and the appellant went to seek help from a mutual friend DW4, a friend who could speak English and Cantonese.  D1 again asked for a share of the money and again the appellant refused as he wanted to return the money and phones to the owner.  He said DW4 used Madam Lam’s phone and made calls. 

13.D1 continued to make demands for half of the money and threatened to call the police if the appellant did not comply.  As the appellant declined, D1 then locked the appellant and DW4 inside DW4’s home.  After about 10-15 minutes D1 came back to DW4’s home with the police.  D1 opened the door and told the police that the appellant took the money.  The appellant then took out the money from his pocket.  D1 and the appellant then led the police to various locations where the bag and cards were disposed and the bags were first picked up.

14.The appellant stated that he met up with D1 30-35 minutes after he picked up the bags.  He was unable to account for what he had been doing during that period.  The appellant was unable to say why if he knew the bags belonged to someone else he gave them to D1 and why he and D1 threw away the cards. 

DW4’s evidence

15.DW4 said that the appellant and D1 came to his home on the material date.  The appellant showed him the money and the two mobile phones and told him he had found them.  He said the appellant told him that D1 asked to share half of the money and threatened to call the police if the appellant did not do so. 

16.DW4 said as the appellant had wanted to locate the owner to return the lost property, DW4 turned on the phone and tried to call several numbers stored in the phone to locate the owner.  However, when the phone was connected to the opposite party, that party only spoke in “mainland Chinese” whereas he was only able to speak “Hong Kong Chinese,” some English, Urdu and Punjabi.  After the unsuccessful calls, he suggested the appellant make a report to the police.  At this point he found that he and the appellant were locked inside his home.  After 15-20 minutes, D1 came to the house with police officers.

17.DW4 said he did not make any phone calls to the police as he did not know how to call the police despite living in Hong Kong for 7 years.  He had never dialled 999 and had never heard of the telephone number 999.  He went on to explain that he took no further steps to go to make a report to the police as he expected D1 to call the police because the appellant refused to share the money with D1.

Grounds of appeal against conviction

18.The appellant was not legally represented on appeal.  The grounds of appeal advanced by the appellant turn solely on fact and credibility.  He complains that the conviction is against the weight of the evidence.  He repeated his defence raised at his trial.  Further he complained that insufficient weight had been placed upon his clear record.  Despite being in Hong Kong for more than six years, as a form 8 recognizance holder and unable to work, he has never committed an offence. 

Issue – Dishonesty

19.The appellant was legally represented at his trial.  Most of the factual circumstances of the prosecution case were admitted by the appellant.  The appellant admitted that he had picked up the properties belonging to Madam Lam and was found by the police officers to be in possession of the phones and money.  The remaining property was discarded.  The main issue at trial was whether the appellant was dishonest and whether he had the intention to permanently deprive Madam Lam of her property.

Magistrate’s findings

20.The magistrate rejected the appellant’s evidence that he intended to return the money and the two phones to the owner.  He found that the appellant intended to keep the money and the two mobile phones.  He found that if the appellant had wanted to return the properties found to the owner he would have returned the waist bag, the yellow bag and all its contents.  Further on the appellant’s case he had admitted to either giving the other property to D1, or discarding the others.  He was sure, that appellant had dishonestly appropriated the property with the intention of depriving Madam Lam permanently of it. 

Discussion

21.In conducting a magistracy appeal by way of a rehearing[2], the appellate court should recognise the advantage the trial magistrate had of receiving the evidence first hand, and should only depart from the magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is plainly wrong: HKSAR v Ip Chin Kei & ors [2012] 4 HKLRD 383[3].

22.The magistrate was well aware of the standard and burden of proof in a criminal trial[4].  He directed himself properly in law regarding the appellant’s clear record[5] and gave a careful assessment[6] of the defence evidence.  He provided cogent reasons for rejecting the evidence of D1, the appellant and DW4.  The magistrate’s finding that the appellant’s act of giving some of Madam Lam’s property to D1 and discarding some of her property and only keeping the money and the phones were wholly inconsistent with a person who wanted to return the lost property to its owner. 

23.The magistrate properly evaluated the evidence from the defence before rejecting it.  The magistrate’s assessment of the credibility of D1, the appellant and DW4 and his finding against the appellant cannot be faulted.

24.The magistrate was fully justified in reaching his conclusion that the appellant had been shown to have committed this offence.

25.The conviction was neither unsafe nor unsatisfactory.  For these reasons I dismiss the appeal.

Appeal against sentence

26.In the appellant’s appeal against conviction in Form 101, he complained that his sentence was too severe.  He had not however filed his Form 102 to appeal against sentence by the time of the hearing of appeal.  Nevertheless the magistrate had prepared his reasons for sentence.  As the appellant had indicated his intention to appeal against sentence early in time, I granted leave to the appellant to appeal his sentence out of time. 

27.The appellant contends that the sentence was too severe.  He complains that insufficient credit was given to him as a first time offender. He further requests that the sentence be reduced on humanitarian grounds for an immediate release so as to enable him to keep in contact with his children in Pakistan over the telephone so as to ensure they are well taken care of. 

28.In sentencing, the magistrate took into account the following:

(i) the value of the stolen property approximately HK$12,221.57 as stated in the original charge[7];

(ii) the immense inconvenience to Madam Lam and the risk of losing important data on her mobile phones;

(iii) the recovery of all her stolen items; and

(iv) the clear record of the appellant.

29.The magistrate took a starting point of 8 months’ imprisonment and reduced it to 7 months giving the appellant credit for his clear record.

30.Ms Chit Senior Public Prosecutor for the respondent has refered to the following cases in respect of theft of mobile phones.  HKSAR v YEUNG Wing-yiu HCMA 1068/2001[8], the defendant pleaded guilty to a charge of theft for picking up a mobile phone.  On appeal, the Court of First Instance had indicated that a 6-month starting point would have been appropriate.  In HKSAR v MAC QUANG BINK HCMA 234/2007[9], the defendant pleaded guilty to a charge of theft and the stolen property was again a mobile phone.  On appeal, the Court found that there was the possibility that the defendant had picked up the phone by finding, the sentence was reduced from 14 months to 6 months’ imprisonment, ie a starting point of 9 months.  However in that case that the defendant was a repeated offender.

31.In HKSAR v Chiu Suet Yee AngelCACC 105/2010[10], the Court of Appeal stated that the value of the properties stolen is one of the factors (amongst others) which will assist in determining the initial starting point.

32.There is no sentencing tariff for the charge of theft.  Each case turns on its own facts.  

33.On the facts of this case, this was a theft by finding.  Given the value of the stolen properties particularly the cash, the two mobile phones and the risk of losing important data stored in the mobile phones, the starting point of 8 months for a first offender is not manifestly excessive.  The magistrate did consider the appellant’s clear record and gave the appellant credit to that by reducing the sentence to 7 months imprisonment.  There are no humanitarian factors advanced by the appellant warranting a further reduction of sentence.

34.As a result I am of the view that the sentence of 7 months’ imprisonment is not manifestly excessive or wrong in principle.

Ms Noelle A Chit, SPP(Ag), of the Department of Justice, for the respondent

The appellant appeared in person