HKSAR v. Yennar, Abdelghani

HCMA 147/2020

[2020] HKCFI 2983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 147 OF 2020

(ON APPEAL FROM ESCC 163 OF 2020)

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BETWEEN

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Before:  Hon D’Almada Remedios J in Court

Dates of Hearing:  13 and 19 October 2020

Date of Judgment:  19 October 2020

Date of Reasons for Judgment:  26 November 2020

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REASONS FOR JUDGMENT

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1.The appellant appeals against his conviction.

2.The appellant at trial was the second defendant (D2).  He was jointly charged with the first defendant (D1) with one count of attempted theft contrary to section 8 of the Theft Ordinance Cap 210 and section 159G of the Crimes Ordinance Cap 200.  On 8 June 2020 he was convicted after trial by a magistrate[1]. On 9 June 2020 he was sentenced to 19 months’ imprisonment, to run consecutive to the sentences he was serving.

The prosecution case

3.The prosecution case was that the appellant and D1 attempted to steal a mobile phone from the waist bag of Lee Wing Keung (Lee) inside Central MTR station.  D1 pleaded guilty to the charge.  The trial therefore only concerned the appellant.

4.The prosecution called two witness, namely Lee and a police officer, Sergeant Mak.  The facts are clearly set out by the magistrate as follows:

5.At about 2000 hours on 16 November 2018, Sergeant Mak who was conducting anti-crime patrol with her colleagues, spotted the appellant and D1 acting suspiciously outside Exit A of Central MTR station.  She therefore put them under observation.

6.She saw D1 point at Exit A.  The appellant and D1 then walked up to the exit and approached Lee at the escalator going down from the street level to the station.  At that time, D1 was one step behind Lee, the appellant was one step behind D1, and Sergeant Mak was 2 steps behind the appellant.

7.When the escalator was going down, Sergeant Mak saw D1 put his right thumb and index finger into Lee’s waist bag for about 2 seconds, attempting to take out a mobile phone from Lee’s waist bag but was unable to do so.  At this juncture, the appellant who was still one step behind D1, was standing on tiptoe and moving his body left to right and also kept looking back nervously.

8.As D1 was unable to pick out the mobile phone, he turned around to the appellant and shook his right index finger from left to right.  Lee, who felt some motion in his waist bag, also looked down but found nothing abnormal as all his belongings were still inside his bag.

9.Upon reaching the end of the escalator, Sergeant Mak, D1, the appellant and Lee continued their journey towards the entrance gate.  When Lee was about to enter the gate, D1 once again dashed forward and tried to pull Lee’s mobile phone out.  However, he failed for a second time as Lee managed to get into the gate before losing his phone.  D1 then turned around and exchanged a few words with the appellant.  After that, they went back to the street level of Exit A. Sergeant Mak was all along following them.  As a result of the above, the appellant was arrested outside Exit A.

DEFENCE CASE

10.The appellant elected not to give evidence and called no defence witnesses.  The defence case was that he was not a party to D1’s criminal act.  He was simply repositioning himself on a moving escalator and he was not assisting D1 in blocking the views of others.

Issue at trial

11.The core issue at trial was whether the appellant was a party to D1’s criminal conduct.

The magistrate’s findings

12.The magistrate reminded himself of the prosecution’s burden to prove each element of the offence beyond reasonable doubt.  The magistrate also reminded himself not to draw any adverse inference on the appellant’s election not to give any evidence nor to call any defence witnesses.

13.The magistrate found Sergeant Mak’s evidence was logical with no inherent contradiction.  Sergeant Mak did not hesitate when answering questions put to her.  She remained unshaken under cross-examination.  She was able to recall how the whole event unfolded.  Most importantly, she was in close proximity with the defendants during the whole incident.  He found her to be an honest and reliable witness.

14.Lee’s evidence was not subject to any cross-examination.  Having carefully examined his evidence, the magistrate was satisfied that he had given credible and reliable evidence and accepted his evidence in full.

15.The magistrate carefully considered on the evidence whether the appellant was acting together with D1 in attempting to pickpocket the phone although they played different parts.  The appellant acted as the look-out and D1 was the person who executed the plan and his act of inserting his fingers into Lee’s waist bag was more than preparatory.

16.On the evidence before the magistrate he was satisfied beyond reasonable doubt that appellant was acting together with D1 to commit the offence.  He found:

(i)  Before D1 and the appellant approached Lee, D1 made a hand signal to the appellant by pointing his finger at Exit A.  D1 and the appellant then walked up to Lee;

(ii)  When D1 was trying to pick out the mobile phone from Lee’s waist bag, the appellant was standing in close proximity.  The appellant was standing on tiptoes and was moving his body;

(iii)  When D1 was trying to pick out the phone, the appellant looked back in a nervous way;

(iv)  When D1 was unable to pick out the phone, he signaled to the appellant by shaking his index finger; and

(v)  At the entrance gate, after D1 once again failed to pick out the phone, D1 immediately spoke to the appellant and they, together, returned to Exit A.

17.The magistrate found the prosecution had proved the charge against the appellant beyond all reasonable doubt.

Grounds of appeal

18.The appellant in his Form 101 did not specify any grounds of appeal against conviction but stated that the court did not discount the time he spent in jail since 10 December 2019.  In a letter dated 17 August 2020 to the Court the appellant revised his grounds stating the following:

“D1 he is willing to be a witness in my case and he will come to the High Court to testify in my case to give more detail about the charge.”

Application to adduce fresh evidence

19.The appellant was therefore seeking to adduce additional evidence and was therefore applying for D1 to give evidence at the appeal hearing.

20.In an appeal from the magistrate’s court, the power to receive further evidence comes from section 118(1)(b) of the Magistrates Ordinance Cap 227 which provides that in an appeal under section 105(b):

“when the appeal comes on for hearing the appellant shall be first heard in support of the appeal, the respondent if present and if he so desires shall be heard against it and the appellant thereafter shall be entitled to reply. If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under subsections (1) and (6) to (17) of section 83V of the Criminal Procedure Ordinance (Cap 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, and the judge may issue any process necessary for enforcing the exercise of such powers; (Amended 34 of 1972 s 22; 23 of 2003 ss 11 and 24)”

21.Section 118(1) (b) of the Magistrates Ordinance gives the judge a power to admit further evidence and has the same powers as possessed by the Court of Appeal under section 83V of the Criminal Procedure Ordinance Cap 221 (CPO) if the judge considers such evidence to be necessary.  It is a discretion to be exercised judicially in the interests of justice.

22.The Court of Final Appeal in HKSAR v Mohammad Mahabour Rahman (2010) 13 HKCFA 20 set out the conditions to be satisfied under section 83V(2) of the CPO before the Court will exercise its discretion to receive fresh evidence.

23.The conditions to be satisfied before the Court will exercise its discretion to receive fresh evidence as set out in Section 83V(2) of the CPO are that:

(i)  the fresh evidence was likely to be credible;

(ii)  it would have been admissible in the courts below;

(iii)  it was relevant to an issue in the appeal;

(iv)  there was a reasonable explanation for the failure to adduce it in the courts below; and

(v)  the court is satisfied it would afford a ground of appeal

24.Leaving aside questions of reliability of the evidence.  In answer to (iv) above, the appellant’s explanation for his failure to call D1 as his witness at the trial before the magistrate was that he did not think D1’s testimony that the appellant was innocent was going to be useful.

25.The appellant was legally represented by Mr Brian Littlewood at his trial before the magistrate.  On 8 June 2020, the first day of the trial D1 and the appellant were arraigned together.  D1 pleaded guilty and the appellant pleaded not guilty[2]. The trial commenced immediately after their arraignment and on the same day the appellant was convicted.

26.The appellant was in a position to call D1 to testify for him.  As can be seen from the statement of findings the appellant chose not to do so.  He made that choice not to call evidence and not to call D1[3].

27.In my judgment the appellant has advanced no reasonable explanation for his failure to adduce that evidence before the magistrate.  The appellant has failed to satisfy the conditions of section 83V(2).

28.Moreover, having regard to those conditions, in the broader context of admitting the evidence in the interests of justice pursuant to section 83V(1) I was not satisfied that it was appropriate to admit that evidence.

Conclusion

29.Accordingly, I refused the appellant’s application to admit the fresh evidence.

30.There were no merits in the ground of appeal advanced and I dismissed the appeal.

Ms Laura Liu, SPP (Ag.) of the Director of Public Prosecutions, for the respondent

The appellant appeared in person