HKSAR v. Rai Kamal

HCMA 366/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 366 OF 2016

(ON APPEAL FROM KCCC 1612 OF 2016)

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J U D G M E N T

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1.The appellant appeals his conviction of the offence of theft[1] by a magistrate.[2]

2.The appellant was found guilty after trial of stealing a German identity card, a German driving licence, and Alliance insurance card (the documents) all in the name of the same person, being the property belonging to another person on 25 November 2015 at the rear lane of No. 2 Humphreys Avenue, Tsim Sha Tsui. 

The Prosecution case

3.The prosecution called two police officers.  The arresting officer, PW1, and PW2 the duty officer of the report room of Tsim Sha Tsui Police station. 

4.On 25 November 2015 at the rear lane of Humphrey’s Avenue, the arresting officer stopped and searched the appellant. Upon request for the appellant’s identification document the appellant took out his construction industry safety training certificate from a luggage tag.  Within the luggage tag, PW1, found the documents all in the name of one, Feider Andreas Alfred. 

5.On 6 November 2015 (approximately three weeks earlier) the duty officer received a loss report from a visitor by the name of Feider Andreas Alfred who reported loss of amongst other items, a driver’s licence, an EC-card and a Germany identity card on Nathan Road near Tsim Sha Tsui on 5 November 2015. 

The Defence case

6.During the trial the appellant was legally represented.  It was not disputed that the documents were found in the appellant’s possession in the luggage tag and that they did not belong to the appellant but to another person. 

7.The appellant elected not to give evidence and did not call any witnesses.  Defence counsel in his closing submissions submitted that the appellant did not steal the documents but simply found those documents where he was.  Having found those documents the appellant put them into his luggage tag.  He intended to return the documents and did return them when he was stopped by the police officers on the material day in question.

Issue at trial

8.The main issue at trial was whether the appellant was dishonest and whether he had the intention to permanently deprive another of the documents.

Magistrate’s Findings

9.The magistrate stated that there was no evidence to show how the appellant came into possession of the documents.  He found that the appellant knew the documents belonged to another.  He accepted the evidence of PW1, the arresting officer, that the appellant neither made a report nor mentioned the documents during their encounter.

Grounds of appeal

10.The appellant in his oral grounds of appeal advanced the same arguments as that of his counsel at his trial.  They were that he had no intention to steal the documents.  It was not the police who recovered the documents from him but it was him who handed them over to the police officer. 

Analysis

11.The magistrate bore in mind that the burden rests squarely upon the prosecution to prove beyond reasonable doubt the guilt of the appellant whilst the appellant had no burden to prove his innocence.

12.The magistrate was entitled to find that the police officers were honest and reliable witnesses.  There is nothing before me to find that he was plainly wrong. 

13.The facts as the magistrate found fully supported the conviction of theft against the appellant.  He was sure that the appellant knew the documents were in the name of another person (as particularly the photos on the documents were of another person and not of the appellant). 

14.In accepting that the appellant never made a report nor mentioned the documents to the arresting officer the magistrate was entitled to infer that the appellant had intended to permanently deprive another of the documents.  He was entitled to infer that keeping the documents together with his own identity documents the appellant treated the documents as his own and found in all the circumstances the appellant was dishonest.

Conclusion

15.I found no merit in the appellant’s grounds of appeal.

16.The magistrate was fully entitled to have convicted the appellant on the evidence and, having reviewed the evidence with care, I am satisfied and sure that the case was properly established against the appellant.

17.The appeal against conviction is dismissed. 

Ms Manna Wong, PP of the Department of Justice, for the respondent

The appellant appeared in person