The Queen v. Lee Wing Keung

HCMA000342/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 342 of 1984

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BETWEEN

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Coram: Hon. Penlington, J. in Court

Date of hearing: 4 July 1984

Date of judgment: 4 July 1984

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JUDGMENT

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1. This is an appeal against conviction on a charge of pickpocketing. Mr. Wong, for the Appellant, takes the point first of all that the charge should have been dismissed by the Magistrate without even going into the evidence because of the long and numerous adjournments of the matter before it was heard.

2. It first came before the Court on the 23rd March 1983. There were then many adjournments mainly caused by the fact that a prosecution witness, the owner of the wallet which had been stolen, did not appear and eventually a warrant for arrest had to be issued. The matter eventually did come on for hearing on the 11th April 1984. It goes without saying that this was unfortunate and indeed if the Crown at the trial had been relying on the memory of the witness to any material extent it may well have caused the Magistrate to have some doubt as to his recollection of events which had taken place so long time ago. However, at the trial the defendant was represented by a Counsel and no application was made for dismissal on that ground. At the previous hearing the accused had been unrepresented but again he did not object to further adjournments. He was on bail. While it was unfortunate it certainly was not the fault of the Crown who, I think, did everything possible to bring the matter on for hearing, and in the event I do not think the defendant was prejudiced.

3. The main ground upon which Mr. Wong relies, however, is a direct conflict of evidence between the 1st and 2nd prosecution witnesses. The 1st witness, who was the victim, said that after he found his wallet missing on the train he exchanged words with the defendant. They quarrelled. A police constable, the 2nd witness, came up to them and at that stage he saw his wallet lying on the ground and he picked it up. The police constable said that was not so, that in fact he searched the accused and found the wallet on him. The Magistrate having heard both witnesses, was faced with a clear conflict of evidence, and said that he preferred that given by the constable, who he found to be a reliable witness, whereas he found the lst prosecution witness, the victim, to be evasive and unreliable and he only accepted his evidence where it was corroborated. That is a pure finding of fact. He therefore was satisfied that the wallet was found on the accused, as related by the constable and the defendant was in possession of property which had been stolen only a few moments before. He did not give evidence himself and I am satisfied the Magistrate was quite entitled to come to the conclusion that he had stolen the wallet.

4. The appeal against conviction is dismissed.

Representation:

A. Wong (Liu, Chan & Lam) for Appellant

M. Hartmann, Crown Counsel, for Respondent