HKSAR v. Wong Shee Meng

HCMA 46/2019

[2020] HKCFI 2899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 46 OF 2019

(ON APPEAL FROM KCCC NO 2515 OF 2018)

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Before:  Deputy High Court Judge Tam in Court

Date of Hearing:  9 October 2019

Date of Judgment: 24 November 2020

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J U D G M E N T

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1.The appellant was convicted after trial before a magistrate of one charge of Theft. He appeals against conviction only.

2.Both here and below, the appellant was represented by Mr Paul Wu of counsel.

3.The particulars of the offence are that the appellant, on a date unknown from 25 July 2017 to 15 August 2018, in Hong Kong, stole one number of “Rolex” wrist watch (details given) value: $93,500 HKD, the property of [PW1].

PERFECTED GROUNDS OF APPEAL

4.There are two perfected grounds of appeal.  They are:

(1)  The learned magistrate erred to state that the trial is essentially a rebuttal case and thereby shifted the burden of proof of innocent (sic) to the Appellant; and

(2)  There is insufficient [evidence] to prove that the Appellant acted dishonestly and intended not to pay for the purchase price of the watch.

THE PROSECUTION CASE AT TRIAL

5.The prosecution case is largely undisputed.  On 24 July 2017, the appellant agreed to purchase a Rolex watch from PW1 at HK$93,500.  He received the watch from PW1 the following morning without payment.  Subsequent to the purchase, PW1 had demanded the appellant for payment by sending three invoices dated 31 July 2017, 6 October 2017 and 23 November 2017 to the appellant’s email address.  In addition to the three invoices, PW1 sent various WeChat messages to the appellant between 24 July 2017 and 17 February 2018 demanding payment, coupled with the provision of several receiving account details on various currencies.  PW1’s continuous efforts for demanding payment were to no avail.  The appellant never returned the subject Rolex to PW1.  In the result, PW1 reported the case to Hong Kong police in May 2018.  The appellant was stopped when he entered Hong Kong on 15 August 2018 and was passed over to the police for arrest.

THE DEFENCE CASE AT TRIAL

6.The appellant gave evidence.  He agreed to purchase and acquired from PW1 the subject Rolex but had not paid.  He had intended to make payment but had not done so for various reasons.  First, he had incurred business losses with a company called “Freedom”; that he felt upset so he stalled payment.  Secondly, he travelled quite frequently which might cause him difficulty in making arrangement for payment.  Thirdly, he had instructed his business partner Michael Ti in September 2017 to make payment but the latter failed to do so.  For the first time he made a serious attempt to pay PW1 by instructing a Jerry Su to do so in the beginning of August 2018 but by which time PW1 had already made a police report.  He was willing to make payment to PW1, but was advised by the police not to contact prosecution witnesses.  As a result, he withheld payment.

MY CONSIDERATIONS

7.I have considered all submissions from both sides.

On Ground 1

8.The appellant relied on a single sentence (underlined below) in the Statement of Finding as the basis of this ground. The statement is in para 2 of the Statement of Findings, as follows:

“2. This is essentially a rebuttal case. Facts and conducts constituting the overt acts of the offence of theft are admitted by way of section 65C admitted facts.”

9.I am of the view that this is a bad attempt in quoting the magistrate out of context.  In para 26 of the Statement of Findings, the magistrate clearly said:

“26. The burden is on the prosecution to prove the charge beyond all reasonable doubt, failing which the defendant must be acquitted. The defendant has no burden to prove anything whatsoever.”

10.A “rebuttal case” is simply a convenient label used by criminal law practitioners to indicate a case where the bulk of the prosecution case is undisputed and that it is for the defence to adduce evidence – often by calling the defendant to give evidence – so as to cast a reasonable doubt on the prosecution case.

11.There is no indication whatsoever in the Statement of Findings to suggest the magistrate has failed to grasp this fundamental principle in the criminal law ie (subject to a number of well-defined exceptions) it is always for the prosecution to prove all the elements of an offence beyond a reasonable doubt and the defendant has to prove nothing, and certainly not his innocence.

12.This ground has no merits whatsoever.

On Ground 2

13.The appellant in submission has simply repeated the defence case presented at trial and argued again that there was insufficient evidence to prove to the required standard the appellant’s dishonesty under the Ghosh test[1]which arguments the magistrate had fully considered and rejected.

14.The magistrate said this in para 44 of the Statement of Findings:

“44. Having considered the entirety of the evidence, the court finds beyond all reasonable doubt that in stalling payment to Mr Wong despite clear opportunity to do so either by himself personally or via others, either by using the banking system on the mainland, in Hong Kong, or in Malaysia, in the context of this case, that in that year of the charge period, there had come a time when the defendant had misappropriated the watch as if it was his own, as if he would never have to pay for it. I consider the principle in Ghosh and I find the defendant’s act dishonest within the meaning of that case.”

15.I can find no error in the conclusion above or in the reasoning adopted by the magistrate as recorded in the Statement of Findings.

16.Besides, an appellate court will not lightly interfere with the tribunal of fact’s findings on facts and I have found no justifiable reasons to do so on this occasion.

17.The conviction is not unsafe or unsatisfactory.

18.This ground also fails.

CONCLUSION

19.For the above reasons, the appeal against conviction is dismissed.  I confirm the conviction.

Mr Jonathan Lin, SPP of Department of Justice, for the Respondent

Mr Paul K N Wu, instructed by Damien Shea & Co, for the Appellant