Chau Kwai-tong v. The Queen

CACC000162/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 162 OF 1976

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Coram: Morley-John, J.

Date of Judgment: 20th February, 1976.

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JUDGMENT

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1. The appellant was found guilty of theft in that he stole $200 from the pocket of the victim on 25th November, 1975 during a race meeting at the Jockey Club. It is against this conviction that he now appeals.

2. In his evidence the victim first said that on the day in question at the Jockey Club he noticed someone touching his trousers pocket and saw that person withdrawing his hand, be then said that he felt a hand in his pocket but that he did not see a hand. The victim said that he turned round and saw the appellant standing behind him with his left hand behind his back and he also saw another person standing behind the appellant, the victim said that he could not see very clearly, he said he checked his pocket and found $200 missing which had been there just a minute before. He said that there were only a few other people about. The victim said that he asked the appellant if he had stolen $200 from him and asked him to return the money but the appellant denied that he had stolen any money. An argument ensued which according to the victim lasted for 20 minutes before the police arrived. The appellant was searched but was found to have only $70 on his person. The victim said that he suspected that the appellant had handed the money over to the person who had been standing behind him. There was no evidence whatsoever of there being any connection between the appellant and the person standing behind him. The victim concluded his evidence by saying that it was the appellant who put his hand in his pocket, although he had amended his evidence previously to say that he did not see any hand but only felt one.

3. The appellant in evidence said that he was merely walking behind the victim at the time as he was going up to the totaliser to place a bet on the third race and that the victim came up to him from behind and asked him if he had taken his money. The appellant said that he denied this accusation and that he argued with the victim until the police arrived.

4. From this evidence the learned magistrate found that the victim had $200 in his rear pocket at about 2.10 p.m. on 25th November, 1975 at the Jockey Club; that he felt a hand in his rear pocket; that he turned and saw the defendant moving his left hand behind his back; that the defendant and another person behind him were the only persons nearby; that the victim then checked and found that $200 was missing. Upon these facts the learned magistrate stated that he was satisfied that the defendant did steal $200 from the victim.

5. The appellant who appeared in person impressed me as a truthful person. He repeated what he had said to the learned magistrate and added that he was a person of good character (at the trial it was agreed the appellant was a man of 36 years of age and had a clear record), the appellant said, and it was not contested, that he is a married man with a family, that he had been in the same employment for ten years with a monthly income of between $1,300 and $1,400 a month, that he was therefore comfortably off, and had no reason for trying to steal from the victim.

6. There was no evidence that money could actually be seen sticking out of the victim's pocket, thereby creating any sudden temptation to a person to steal, to the contrary the victim said he felt a hand actually go into his pocket. There was no evidence that the appellant knew that the victim had any money in that pocket. Why then should a family man of good character and not in need suddenly and inexplicably try to pick the victim's pocket. Added to the fact that the appellant made no attempt to escape but continued to declare his innocence for apparently some 20 minutes until the police arrived and then when searched was found to have only $70 upon his person. The victim said he suspected that the appellant had handed the money to the person behind him, he never saw the appellant actually hand anything to anyone behind him. Apparently from the victim's evidence the man behind the appellant did not make off immediately but later as more persons gathered round, the victim said that he lost sight of this man.

7. Taking all the circumstances of this case into account I do not think that it would be safe to allow this conviction to stand, and accordingly I allow this appeal, and the appellant is discharged.

20th February, 1976.

Representation:

Appellant in person.

Mr. J. Conway, Crown Counsel, for the Crown.