HKSAR v. Butt, Ummar

HCMA 344/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 344 OF 2016

(ON APPEAL FROM KCCC NO 957 OF 2016)

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REASONS FOR JUDGMENT

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1.The appellant was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong.

2.Pleading not guilty to the charge, he was found guilty after trial by a magistrate (“the Magistrate”) and was sentenced to 5 months’ imprisonment.  He now appeals against his conviction only.

3.In this appeal hearing the appellant was represented by Mr Duncan Percy who also represented the appellant at his trial then instructed by the Duty Lawyer Service.

4.Having heard the submissions of both parties, I dismissed the appeal.  These are the reasons for my judgment.

THE EVIDENCE

5.It was a case of “theft by finding”.  The appellant was stopped by police officers on the street and found in possession of three bank cards belonging to another. The appellant’s case was that he found the cards an hour ago and he intended to return the cards to the owner by giving the cards to the police or returning by post.

6.The Magistrate summarized the evidence of the case as follows:

“2. The Prosecution called one witness, namely the arresting police officer (‘PW1’) who was carrying out his patrol duty in uniform at the material time. He told the court how he found the defendant to be acting suspiciously and how he stopped and searched the defendant at the scene. It was not in dispute that the 3 bank cards in question were found in 3 different card holder compartments of the defendant’s wallet. The defendant was then arrested for the offence of theft. Under caution the defendant said that he picked up the 3 bank cards in Nam Cheong Park about an hour before and he had never used the cards. The prosecution alleged that the defendant was dishonest when he picked up the bank cards and kept them as his own. The defendant had the intention to permanently deprive the owner of the bank cards.

3. The defendant did not challenge the admissibility of the verbal admission but challenged the accuracy of it.  The defendant did not elect to give evidence in court but it was put to PW1 in cross-examination that the defendant said under caution, ‘About one hour ago, I found these 3 cards in Nam Cheong Garden and intended to return to police or post it on the next day.’  PW1 categorically disagreed.”

THE ISSUE

7.The Magistrate went on:

“Issue

4. As disclosed by the defence counsel right at the beginning of the trial, the line of defence was that the defendant had every intention to return the 3 bank cards to the owner, either by taking them to the police or posting them on the following day.

5. The credibility and reliability of PW1 was in issue.”

THE MAGISTRATE’S REASONS FOR CONVICTION

8.Having noted the discrepancies between PW1’s evidence in court and what was said in his witness statements, and that he could only “partially” remember what the appellant had said during the 3-minute enquiry at the scene when he wrote his witness statements, the Magistrate found the evidence of PW1 “to be clear, cogent and compelling.  He remained unshaken under cross-examination. He gave evidence in a straight-forward manner.”  She found PW1 to be an honest and reasonable witness.

9.The Magistrate reminded herself that no adverse inference could be drawn against the appellant for his remaining silent, and that the prosecution must prove the charge beyond reasonable doubt.  On the other hand, she noted that there was no evidence from the defence to “undermine, contradict or explain the evidence put before the court by the Prosecution.”  She found that upon enquiries and being cautioned by PW1, the appellant said he picked up the three cards in Nam Cheong Park about an hour before and he did not use them.  She attached full weight to it.  She did not accept, as was put by the defence to PW1, that PW1 had forgotten a part of what the appellant said, namely, he intended to return the cards to the police or post them on the next day. 

10.In considering whether the appellant was dishonest, the Magistrate said:

“17. … I noted the following facts accepted:

(i) The owner of the cards lost her handbag containing the 3 cards about one month before the defendant was arrested for the present offence (Exh. P5 the Admitted Facts).

(ii) The 3 cards were found in the defendant’s wallet in Nam Cheong Street.

(iii) The defendant said he picked up the 3 loose cards in Nam Cheong Park about an hour before his arrest.

(iv) The defendant did not know and had no means to contact the owner of the cards.

(v) The defendant put the 3 cards into 3 different card holder compartments of his wallet.

(vi) The defendant was walking alone on the street at the material time.

(vii) Upon seeing PW1 who was in uniform, the defendant looked nervous, paused with a start, dropped his head and tried to leave in a hurried pace.

(viii) After being stopped by PW1, the defendant did not volunteer to hand over the 3 bank cards in question to him.

(ix) When taking out from his wallet his proof of identity, i.e. the receipt for replacement of his HKID card, to be shown to PW1, the defendant did not take the opportunity to also take out the 3 bank cards and hand them to PW1.”

At the end of her analysis of the evidence, the Magistrate came to this conclusion:

“18. By applying the Ghosh test, I was sure that the defendant was dishonest at the time when he picked up the 3 cards from the park and kept them in his wallet. I was sure that the defendant did intend to keep the cards for his own use. He therefore had the intention to permanently deprive the owner of them. What the defendant did was dishonest by the ordinary standards of reasonable and honest people and the defendant himself must have realized that what he was doing would be regarded as dishonest by those standards.”

THE GROUNDS OF APPEAL

11.The Perfected Grounds of Appeal consisting of 10 paragraphs can be summarized as 7 main grounds:

(1)   There were material inconsistencies and/or discrepancies in PW1’s testimony which should have caused the Magistrate to have a reasonable doubt about his credibility;

(2)   The Magistrate misconstrued the evidence of PW1 about the circumstances of the initial interception. There was no evidence that the appellant had in fact tried to evade the police by leaving in a hurried pace;

(3)   The Magistrate failed to grasp the point of the defence, namely, PW1 had genuinely forgotten what the appellant had said during the 3 minutes of unrecorded conversation before arrest and caution;

(4)   The Magistrate wrongly placed full weight upon the evidential significance of the appellant’s failure after being stopped , of taking the opportunity of voluntarily producing the 3 cards, as indicative of his dishonesty, when in fact he did give an explanation following the search but was never asked by PW1 what his intentions were;

(5)   The Magistrate was wrong to have drawn an adverse inference as the only reasonable inference against the appellant, namely his dishonesty and an intention to permanently deprive the owner of the cards;

(6)   The Magistrate failed to accurately apply the Ghosh test;

(7)   In all the circumstances, the conviction was unsafe and unsatisfactory.

MY OPINION

Ground 1

12.Mr Percy complained that there were a number of material inconsistencies and/or discrepancies in PW1’s testimony. The main differences were that, compared to what PW1 said in evidence, there was no mention in his two witness statements:-

(a) that he was able to remember he had first asked the appellant whether he understood Cantonese or English, and that he had remembered reasons given by the appellant for electing to answer in Cantonese;

(b) that he remembered seeing the appellant replace his wallet back into his rear trousers pocket after taking it out to produce his proof of identity.

13.It was submitted that PW1’s claim of having a clear recollection was inherently improbable given the period of time that had elapsed.

14.I need only to reiterate what Stock J (as he then was) said in R v Kwong Wing On, HCMA 574/1996, unreported:

“Pausing at this juncture, I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

15.The Magistrate was not unaware of the “discrepancies” referred to by Mr Percy.  In fact she properly evaluated these discrepancies and inconsistencies in her Statement of Findings.  I am of the view that she was entitled to accept that PW1 was only giving a “more detailed description of the events” when being asked in cross-examination, instead of a change of version of event.  I do not accept that the evidence of PW1 was inherently improbable. When the witness statement was recorded, he frankly admitted he could not remember every word the Appellant said.  However, he could not have forgotten an exculpatory explanation which amounted to a defence.

16.An 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.  In my judgment, the Magistrate was entitled to accept PW1 as a credible witness. 

Ground 2

17.The Magistrate stated in paragraph 17 of her Statement of Findings:

“In considering dishonesty on the part of the defendant, I noted the following facts accepted:

…

(vii) Upon seeing PW1 who was in uniform, the defendant looked nervous, paused with a start, dropped his head and tried to leave in a hurried pace.” (emphasis added)

18.There was complaint that the Magistrate misconceived PW1’s evidence:

(1) the Magistrate wrongly stated that the appellant’s manner and attitude, as she found in paragraph 17(vii) of her Statement of Findings, was “accepted” as a fact;

(2) she failed to consider that PW1 accepted in cross‑examination that the appellant had immediately stopped and had not tried to evade the three police officers by leaving “in a hurried pace”.

19.Mr Percy submitted that there was no evidence that the appellant had tried to evade the police.

20.It is not clear what the Magistrate actually meant when she stated in the Statement of Findings “I noted the following facts accepted”.  It is to be noted that the transcript shows that when the Brief Reasons for Verdict was delivered, the Magistrate only said “… I note the following facts [without the word ‘accepted’] …” (Appeal Bundle  Page 30N).

21.In any case, as can be seen in the transcript of the trial, PW1 said:

“A. Because at that time I saw him, he looked nervous when he saw me and then, suddenly, he stuttered…

INTERPRETER: ‘His pace stuttered…’

A. … and he dropped his head and didn’t look at me and he wanted to leave in a fast pace.”

Such evidence of PW1 was not challenged in his cross-examination.  The Magistrate cannot be faulted by accepting PW1’s evidence of his observation about the appellant before he was stopped by the police.  The evidence that the appellant did not evade the police after he was told to stop is not inconsistent with the finding in paragraph 17(vii) which only described the manner of the appellant before he was told to stop.

22.I do not find that the Magistrate misunderstood the evidence.

23.Mr Percy also made the point that the Magistrate wrongly recalled the evidence about what the defence was suggesting to PW1 in relation to the time when the appellant said about his intention to return the card.  That was said, as Mr Duncan suggested in cross examination of PW1, when the appellant was being searched, and not what the Magistrate said in paragraph 3 of the Statement of Findings that it was said under caution. 

24.However the crux of the case is whether the appellant told PW1 his intention to return the cards at any time.  Whether it was said before or after caution was immaterial in the decision of the Magistrate. This ground fails.

Ground 3

25.The Magistrate was criticized for failing to grasp a point of the defence that PW1 might have genuinely forgotten that the appellant had said he intended to return the cards to the police or by post.  I find this criticism unfounded.

26.The Magistrate identified at paragraph 5 of the Statement of Findings that the issues were not only the credibility of PW1, but also his reliability.  She noted in paragraph 11 of the Statement of Findings that PW1 admitted he could only “partially remember” what the appellant had said. In his final submission, Mr Percy emphasized that the appellant might have said he intended to return the cards but just that PW1 could not remember it (Appeal Bundle 26E). 

27.In my judgment, that was essentially the defence of the appellant. It could not have failed to understand the defence case. She must have considered and rejected the suggestion that PW 1 might have forgotten this exculpatory part of the appellant’s answers.  Indeed, PW1 could not have forgotten this explanation of the appellant had it been said as it amounted to an innocent explanation.

Ground 4

28.In support of this ground, it was submitted that the appellant is a foreigner.  Cantonese is not his native tongue.  His admission was not reduced in writing for him to sign for his confirmation.  Moreover, no question was put to him about his intention of keeping the cards, what the appellant said to PW1 could not be regarded as admission of guilt.  In my judgment there is no substance in this complaint.

29.Admissibility of the appellant’s admission was not taken as an issue at the trial.  The issue was a factual dispute, i.e., whether the appellant ever told PW1 that he intended to return the cards.  PW1 could understand what the appellant said and clearly remembered that he did not say that.

30.In my judgment, the admission of finding the three cards an hour ago by the appellant is an admission of the “finding” of the cards.  The Magistrate was entitled to attach full weight to the admission that the appellant found the cards. She was also proper to take into account of the fact that the appellant did not volunteer to hand over the 3 bank cards to the police officer to consider the intention of the appellant’s keeping the cards in various slots of his wallet.

31.When the Magistrate said she attached full weight to the admission, she did not find that the appellant was dishonest simply because of the “finding”. She found the appellant guilty only after considering all the evidence and in particular the salient points in paragraph 17 of her Statement of Findings.

32.This ground fails.

Ground 5

33.Mr Percy submitted that the cards had only been found by the appellant an hour ago in a park in near proximity to where he was arrested.   Temporary keeping of the found property was not indication of dishonest intention to deprive the owner of the cards.  There was always a reasonable possibility that the appellant had formed no particular intention with regard to keeping these cards.  The evidence was insufficient for the Magistrate to draw the only reasonable inference that the appellant had the intention to steal.

34.Having considered all the evidence of the case, the Magistrate concluded in paragraph 18 of the Statement of Findings that:

“… I was sure that the defendant was dishonest at the time when he picked up the 3 cards from the park and kept them in his wallet. I was sure that the defendant did intend to keep the cards for his own use.” (emphasis added)

In my judgment, she was entitled to draw such inferences. This ground fails.

Ground 6

35.I see no basis to find that the Magistrate failed to accurately apply the Ghosh test.  The suggestion that the appellant was “presumed to be acting dishonestly” is improper. 

36.At paragraph 14 of the Statement of Findings, the Magistrate said:

“… No adverse inference was drawn against [the appellant] for remaining silent. That was his right. This proved nothing one way or the other. The prosecution must prove the charge beyond a reasonable doubt.”

The Magistrate, having evaluated the evidence carefully, came to a proper conclusion that the appellant was dishonest.  She did not “presume” that the appellant was dishonest.

37.This complaint is wholly without merit.

Ground 7

38.The appeal is conducted by way of a re-hearing requiring me to assess the evidence and come to my own conclusion as to whether the evidence in the case proves the essential elements of the offence beyond reasonable doubt.   

39.The appellant found the three bank cards in a park.  The three cards were placed in different card slots of the appellant’s wallet.  The appellant had no means to find the cards owner.  When the appellant was intercepted, he did not volunteer to hand over the cards to PW1.  When he was interrogated about the cards, he did not tell PW1 that he intended to return the cards to the owner.  I would also draw the same conclusion as the Magistrate did. 

40.I am sure the prosecution has proved its case.  The conviction is neither unsafe nor unsatisfactory.

THE RESULT

41.For the above reasons, the appeal was dismissed.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

Mr Duncan Percy, instructed by Massie & Clement and assigned by the Director of Legal Aid, for the appellant