HKSAR v. Mak Wing Hong

HCMA000265X/1999

(English Translation-英譯本)
HCMA 265/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE RERGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 265 OF 1999

(ON APPEAL FROM TW 42 OF 1999)

Coram: Deputy Judge W. Wong in Court

Date of Hearing: 27 April 1999

Date of Judgment: 29 April 1999

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JUDGMENT

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1. The appellant was convicted of an offence of Theft at the Tsuen Wan Magistracy on 19th February, 1999. It is against the conviction which he now appeals.

Evidence

2. The Prosecution called the owner of property, Mr. Sit to give evidence. He said that at about 5 p.m. on that day he was working inside Shop No. C79 2/F., Kwai Chung Plaza. The appellant entered the shop and asked to test mini television sets. Having tested two mini television sets of 5" and 6" respectively in size, the appellant said the images were unclear. Meanwhile, there were also two other customers at the shop purchasing a VCD player. While the witness was dealing with these two customers, the appellant walked out of the shop at a quick pace, carrying a TV carton box containing a mini television set of 4" in size. Having discovered it, the witness immediately chased up. After he had caught hold of the appellant, he took him back into the shop and retrieved the TV carton box, together with the 4" mini television set from the appellant. At the shop, the appellant tried to break away by brushing his hands. He managed to run out of the shop and disappeared.

3. The appellant elected to give evidence and called two witnesses. He admitted to having taken away the mini television set. However, he said that it was a misunderstanding since he took it away only with a view to comparing it with other TV sets on display at the show window.

4. DW2 worked at the karaoke lounge operated by the appellant. He said that Mr. Sit had been to their karaoke lounge and had a dispute over charges with them.

Decision of the Magistrate

5. Having evaluated the evidence of all witnesses, the Magistrate made the decision as follows:

" I am satisfied beyond doubt that the prosecution witness accused the appellant of theft only when the appellant was caught 20feet away from the shop."

Evidence of the case

6. As to whether or not the appellant was 20 feet away from the shop at the time when he was caught, the tape transcript recorded the following questions and answers in the evidence-in-chief of the prosecution:

Page 11G

Answer: I saw the defendant take it away from the shop and walk to somewhere at the turn.

Q to T

Question: He took away a 4" TV set and walked to somewhere at the turn. What did you do then?

Answer: I immediately chased out of the shop.

Question: Please go on.

Answer: I seized him and took him into the shop.

Question: Wait a minute. You chased（out）of the shop. How far were you away from the shop when you stopped the defendant?

Answer: The glass at the (two Chinese characters (轉番) unintelligible) at the entrance.

7. The word“ 番 " in the Answer is meaningless in the context. It may be an error made in transcription. The correct word should be "turn" ( 彎 ).

Question: Approximately from where you are to where in this courtroom?

Page 12 A-E

Answer: From here to the front.

Question: Where at the front?

Answer: The railing in front, at the turn.

Question: The dock?

Answer: Yes, at a turn, turning like this, I had a showcase there.

Court: 20 feet?

Question: When you stopped the defendant 20 feet away from the shop, did you talk to him?

Answer: At that time I caught him and took him into the shop, I asked him if he had stolen a machine.

Question: Yes. You stopped him 20 feet away from the entrance .....

Answer: The entrance, caught him at the entrance and took him in.

8. In cross-examination, the prosecution witness gave the following answers to the questions:

From Page 15P to Page 16B

Question: Approximately how far were you away from the entrance?

Answer: (To) where I have just said .....

Question: 20 feet?

Answer: Yes, more or less.

Question: 20 feet and it's correct.

Answer: More or less, Huh.

Question: You had first to make a slight turn.. before you could come out from where you were.. behind the counter and ran to stop him at the entrance. Is it right?

Answer: Huh, huh.

Question: When you stopped him, he was standing at the entrance ... according to you, he was standing at the entrance outside the shop, was he?

Answer: Yes, yes..

Question: He was standing beside the showcase at the entrance, is it right?

Answer: Beside the showcase at the entrance, yes.

Conflicting Evidence

9. It can be seen from the above Questions and Answers that the evidence regarding the distance of 20 feet from the location concerned was quite confusing. In examination-in-chief, the witness said it was about 20 feet away from the entrance. However, he said it was beside the showcase at the entrance when being cross-examined.

10. In the Statement of Findings, the Magistrate did not assess the evidence of the prosecution witness on cross-examination about this location of 20 feet away or mention therein that he had taken it into consideration. Nor did he explain why he accepted the evidence that the appellant was caught 20 feet away outside the shop instead of beside the showcase. If he had considered that the appellant was caught beside the showcase at the entrance, the evidence of the appellant that he took the box containing the TV set to the showcase for comparison would have at least cast doubt on the case of the prosecution, and the defendant would have been found not guilty.

11. For the above reasons, I find that the Magistrate's finding on fact is unsafe. Accordingly, I allow the appeal, quash the conviction and set aside the sentence.

Representation:

Mr. Henry Ma instructed by Fong & Co, for the appellant

Miss Denise Chan, Senior Government Counsel, for the respondent