R. v. Cheung Wah Fai

HCMA000737/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 737 OF 1996

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Coram : Hon Stock, J. in Court

Date of hearing : 7 August 1996

Date of judgment : 7 August 1996

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant was tried by a magistrate in respect of a charge of theft. The allegation was that on 21st April 1996, he stole coins from a vegetable stall in Shau Kei Wan to the value of about $452.

2. He pleaded not guilty. The evidence was from the stall owner. She ran an adjacent stall, and on the day in question, she saw the appellant walk inside the stall and pick up a tray which contained money and go off with it. She raised a hue and cry, and he was stopped by someone at a neighbouring stall, although the appellant is said to have tried to run away. When he was stopped, the evidence was that he picked up a knife and tried to attack the man who had stopped him. The police were then called. That was the thrust of the prosecution evidence.

3. The appellant gave evidence at his trial. He said he was doing no more than selecting vegetables at the stall, when he was unjustly accused by the complainant of stealing money. He was then set upon, and the police arrived. He said that the tray with money was indeed on the ground, but that must have happened when he was buying the vegetable and accidentally touched it.

4. The magistrate accepted the evidence of the prosecution witnesses and rejected that of the appellant. That being so, there was no proper course for the magistrate other than a conviction. This court does not rehear evidence, and accordingly does not have the advantage of seeing and hearing the witnesses as does the magistrate. There is nothing wrong in the approach adopted by the magistrate, and the appeal against conviction is accordingly dismissed.

5. The appellant has a number of previous convictions including two for theft, one in 1992 and the other in 1994. There are also a number of convictions for drug related offences. In the circumstances, a sentence of six months' imprisonment is not excessive, and the appeal against sentence is also dismissed.

Representation:

Mr Francis Lo, ACPP, for Crown

Mr Cheung Wah Fai (Appellant) in person