HKSAR v. Ngo King Hok

HCMA000924/2000

HCMA 924/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 924 OF 2000

(ON APPEAL FROM WSCC 4437/2000)

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Coram: Hon V. Bokhary J in Court

Date of Hearing: 17 November 2000

Date of Judgment: 17 November 2000

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J U D G M E N T

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1. On 7 July 2000 this appellant, a man of previous good character in his late 20's, was convicted by Miss Katherine Lo sitting in the Magistrate's Court at Western on one count of theft. Prior to its amendment, this charge was particularised as follows:-

"Ngo King-hok, you are charged that between 10th February 2000 and 11 February 2000 at parking space No. 178, Ground floor, Block 22, Baguio Villa, 555, Victoria Road, Western, in Hong Kong, you stole a briefcase containing a passbook, a vehicle registration document, 2 bundles of keys, some documents and a notebook, the property of Lee Wing-chuen Cecil, at a motor vehicle (registration number: HS 7716) parked at the above location."

2. After hearing all the evidence, the Magistrate amended the charge and then proceeded in the way which she explained as follows in her Statement of Findings:-

"After hearing all the evidence, the court amended the particulars of offence deleting all items other than the documents. Plea was re-taken and the Defendant maintained not guilty plea. The parties also indicated that they do not require calling of new witnesses or recalling of witnesses."

3. It would appear that the Magistrate was not satisfied that the appellant had actually taken the property in question from the victim's vehicle. It appears that she then conscientiously moved on to the question of whether the appellant was guilty on another basis. That basis is the one referred to by Lord Lane C.J. in R v. Lloyd [1985] Q.B. 829 at p. 836 when he spoke of the first part of section 6(1) of the Theft Act 1968 (which has its equivalent in section 7(1) of our Theft Ordinance, Cap. 210) as being aimed at the sort of case where a defendant took goods and then offered them back to the owner to buy if he wished.

4. As I have said, it was conscientious of the Magistrate to consider whether the appellant might be guilty on this different basis. The problem however is that in convicting the appellant, the Magistrate rejected part of the evidence of the second prosecution witness, which part was favourable to the appellant, and she did this on the basis that that witness's evidence was suspect because he was an accomplice. It is of course well recognized that prosecution witnesses' evidence against an accused person must be treated with particular caution. But that is not the same thing as relying on a prosecution witness's status as an accomplice to reject his evidence in favour of the accused, especially when he was never turned hostile.

5. I should mention that the prosecution suggests that the evidence of PW2 favourable to the appellant, which evidence the Magistrate rejected, was insignificant having regard to the view which the Magistrate formed about PW1's evidence of his second conversation with the appellant. The trouble is this. PW1's evidence was contradicted by the evidence of the appellant. It is impossible to be sure that the Magistrate's acceptance of PW1's evidence and her rejection of the appellant's evidence was divorced from her rejection of PW2's evidence in favour of the appellant.

6. In all the circumstances, I regard this conviction as unsafe and unsatisfactory, and I allow the appeal to quash it.

Representation:

Mr Edmond Lee, SGC of the Department of Justice, for the Respondent

Mr Ken Ng Kin Man, instructed by Messrs Jesse H Y Kwok & Co., for the Appellant