Ma Suk-yuk v. The Queen

CACC000206/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 206 OF 1980

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Coram: Silke, J. in Court

Date of Judgment: 21 March 1980

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JUDGMENT

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1. The appellant was convicted at South Kowloon Magistrates Court of the offence of attempted theft and he now appeals against that conviction

2. In the course of the evidence of the arresting constable that witness stated he had noticed the appellant looking around, staring at the pockets of passersby. He kept the appellant under observation and noticed him standing behind and to the left rear of a boy in a crowd. The witness went on:-

"The defendant inserted his two left fingers into the upper shirt pocket of the boy. Before he took his two fingers I stopped him and revealed my identity "and further" when I stopped him he withdrew his two fingers from the shirt pocket."

3. The boy in question, aged 17, had this to say "I noticed a detective caught hold of a man" and "Prior to being approached by PW 1 (the constable) defendant was on my left. I did not pay much attention to him. He was quite close to me, it was so crowded at the time. I did not feel anything at the time."

4. The picture therefore emerges of a man standing behind and to the left rear of the boy inserting his left fingers - and that must be by stretching across the boy - into the boy's shirt pocket. It seems on the face of it, however light fingered the appellant might have been, unusual for the boy to have felt nothing even when the appellant, if the constable's evidence is accepted, was apprehended with his fingers still in the pocket.

5. In his statement of findings, which I appreciate was written some three weeks after the trial, and no doubt with many other trials in the interval, the learned Magistrate had this to say "He (the appellant) was kept under observation for approximately one hour and was then seen to stop beside (my emphasis) a boy at a medicine stall" and "The officer's evidence was corroborated by the intended victim to the extent that immediately before the arrest he was aware of the appellant standing close beside him."

6. With respect to the learned Magistrate that appears to beg the question of the somewhat unusual nature of the evidence.

7. The only way an appellate court can become aware of the findings of fact of a trial Magistrate is from the Statement of Findings prepared by him.

8. In the circumstances here the evidence, coupled with that which appears in the statement of findings, makes this conviction in my view unsafe and unsatisfactory.

9. The appeal is therefore allowed and the conviction quashed.

Representation:

Appellant in person

Mr. Reid for Crown