HKSAR v. Tong Wai Hung

HCMA000860/2002

HCMA860/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 860 OF 2002

(On appeal from WSCC 14248 of 2001)

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Coram: Hon Gall J in Court

Date of Hearing: 8 November 2002

Date of Judgment: 8 November 2002

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J U D G M E N T

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1.The appellant was convicted on 21 June 2002 of one charge of theft before Mr Wyeth, magistrate of the Western Magistracy. He was sentenced to 12 months' imprisonment after trial, to run consecutively to a sentence of nine months which he was then serving.

2.The facts found by the magistrate were that on 7 December 2001, the appellant met a man in a bar in Central. They drank together for an hour or so and then returned to that man's room in Robinson Road. After some intimacy, the two were in bed together and the man felt asleep. He awoke next morning to find the appellant had gone and the items of property listed in the charge had been stolen. Among the stolen property were his wallet and contents, a wrist watch had also been stolen. He did not immediately report the theft to the police but did so on the following day.

3.On 14 December, he went to a bar where he met the appellant earlier and saw the appellant. He followed him through the area and eventually stopped the appellant in another bar where a scuffle ensued and the police were called. A wallet dropped by the appellant was found and identified by the man. Inside the wallet was found imprinted on the plastic card compartment the details of the victim where they had become permanently imprinted in the plastic from a membership card he kept there.

4.The appellant raises a number of matters in his appeal against conviction. Firstly, he says that the magistrate did not properly consider discrepancies between the statement made by the victim of this case to the police at the time of his report of the offence when compared to the evidence that he had given in court. He concedes to me however that those inconsistencies were fully put by him during the trial and were before the magistrate.

5.The magistrate considered those discrepancies and, in his finding, said :

" I found PW1 to be an honest and reliable witness whose evidence I found to be clear, cogent and compelling. I believed it.

I am sure PW1's dealings with the appellant on 7th and 14th December were as PW1 described.

I am sure PW1's identification of the wallet found in the possession of the appellant on 14th December as being his property was completely reliable and accurate."

The magistrate made that finding, having before him the inconsistencies claimed by the appellant. There can be nothing in this ground of appeal.

6.The second matter raised by the appellant is one which featured strongly in the court below. On 14 December when the wallet was recovered from the appellant, two links from a watch band were found in that wallet. At that time PW1 said they appeared to be from his watch. The magistrate dealt with his identification. He said this :

" Much time had been spent, at the appellant's behest, on dealing with his assertion that the issues of the 'R. V. Watch' and the watch strap links found in the wallet were germane to the case before me. In fact they were not. Only when the appellant asked PW1 in cross examination did PW1 opine the links looked as though they could have come his stolen Fendi watch. Of course the unrecovered Fendi watch was not in court for any comparison to be attempted. The 'R. V. Watch' from the Eastern Magistracy case was there and a lay person's comparison indicated the links were similar to those on the 'R. V. Watch' strap. Be that as it may, it was no part of the prosecution case that the links were from PW1's Fendi watch. Despite this I considered the appellant's claim that PW1's alleged misidentification of the watch links as being his detracted from his credibility. I am sure it did not. The appellant's pre-occupation with this matter was misdirected and had nothing like the relevance to the case the appellant attributed to it."

7.All the matters raised before me by the appellant concerning those parts of the watch strap were fully considered by the magistrate and were found by him not to have a relevance to this matter, with that I agree.

8.The appellant generally argues that in convicting the magistrate did not carefully analyse the evidence or read the documents nor did he analyse carefully the evidence of the appellant. He says the conviction is unfair to him. The magistrate in fact considered in his reasons the evidence at great length and in detail. He refers to all the necessary parts of the evidence and clearly understood the import of it.

9.In respect of the evidence of the appellant, he said this :

" I did not believe the appellant's evidence. It was not only inherently improbable much of it was quite absurd. I had no doubt at all he was a completely dishonest witness.

I knew the appellant's guilt did not follow from my disbelieving his evidence and that it remained for the prosecution to prove the charge."

10.I am satisfied that the magistrate has approached this matter as he ought and that none of the grounds of objection raised by the appellant have any merit. The appeal against conviction is dismissed.

11.The appellant also appeals his sentence and was represented in that regard by Mr Lam of counsel. Mr Lam has no complaint concerning the period of 12 months imposed by the magistrate for the offence before him. He concedes that this offence being entirely separate from the one for which the appellant was serving a sentence of nine months' imprisonment at the time of conviction on this offence was an entirely appropriate sentence. What he does say is that by making the two sentences wholly consecutive, the issuing period of imprisonment is too long. He refers me to the case of HKSAR v. Hoang Thi Thu Huyen, CACC 195/2000 where Stuart-Moore VP said :

".... The present offence was entirely separate to the other matter and was, in any event, committed while the Applicant was on bail. In such circumstances, almost inevitably the sentence for this offence should have been ordered to run consecutively. If the overall effect produced a sentence which was considered to be too long then a part of the sentence could have been ordered to run concurrently. ...."

12.In this case, the facts are very similar to that of Hoang Thi Thu Huyen. The offence which the appellant now appeals was committed whilst he was on bail for the earlier offence. Further, each of the two offences which the appellant faced were for a similar modus operandi. It was appropriate that the two sentences be ordered to run consecutively.

13.All of this Mr Lam agrees but says the overall effect produces a sentence which was too long. With this I cannot agree. An overall sentence in all the circumstances of 21 months derived that by making the two sentences consecutive does not produce a sentence which could be considered to be too long. The appeal against sentence is dismissed.

Representation:

Miss Lily Ho, SGC of Department of Justice, for HKSAR

Mr Osmond Lam, instructed by the Director of Legal Aid, for the Appellant (re: appeal against sentence)

Appellant, in person (re: appeal against conviction)