HKSAR v. Suen Yik Wah

HCMA000633/2000

HCMA633/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 633 OF 2000

(On appeal from Kwun Tong Magistracy Case No. KTCC629/2000)

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Coram: Hon Lugar-Mawson J in Court

Date of Hearing: 1 December 2000

Date of Judgment: 1 December 2000

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J U D G M E N T

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1. The appellant, Suen Yik-wah, appeals against his conviction after trial on 2 June 2000, by Mr John Glass, Permanent Magistrate, sitting at Kwun Tong Magistracy, for an offence of attempting to obtain property by deception contrary to Section 17(1) of the Theft Ordinance Cap. 210.

2. On 16 June 2000, Mr Glass sentenced the appellant to serve six months imprisonment for this offence. The appellant also appeals this sentence.

3. The appellant was represented by counsel at trial. At trial, the appellant gave evidence on his own behalf.

4. In brief, the prosecution's case against the appellant was that he was a senior police constable attached to patrol sub-unit one at Sai Kung Police Station. Ng Chau-lung was the owner of a vegetable stall in Sai Kung. He worked there with his wife, Madam Chan So-kuen, and an employee, Hau Pui-lin. At around 3.00 pm on 22 June 1999, the appellant, who was in uniform, went to the stall looking for Mr Ng. He was not there. His wife, Madam Chan, gave him her husband's mobile phone number.

5. At around 9 o'clock in the morning of 23 June 1999, the defendant, this time in plain clothes, went to the stall again and asked Mr Ng to go to Sai Kung City Hall for a chat. He identified himself as a police officer and confirmed his earlier visit the day before. During the conversation he asked Mr Ng to sponsor a football match that was to be held by officers of Sai Kung Police Station in the Mainland. He said that another store had already sponsored $10,000 and the average sponsorship sum would be around $2000 -$3000. Mr Ng agreed to sponsor $3000. He asked, would a receipt be issued? The defendant replied there was to be no receipt, but that a plaque would be given to him. He asked Mr Ng to give him cash on the spot, but Mr Ng asked him to return and collect the money later in the afternoon. After that conversation, Mr Ng made enquiries and learnt that no football match had been organised. The appellant returned to Mr Ng's stall at around 11 o'clock in the morning and there noted down the business registration number and Mr Ng's identity card. He said that it was up to Mr Ng whether he wanted to sponsor the football match or not. The defendant then asked Mr Ng at what time in the afternoon should he come back to collect the money. And Mr Ng said, "Come back between 4 o'clock to 5 o'clock." Shortly after the appellant had left the matter was reported. The appellant failed to turn up and collect the money.

6. As I understand it, the appellant's case at trial was that Mr Ng had made the allegations up as he had warned Mr Ng in the past about obstructing the pavement with goods from his stall.

7. A lengthy seven page document setting out the grounds of appeal has been filed. Essentially, these grounds boil down to no more than a criticism of Mr Glass' approach to the evidence.

8. All issues, save one, that are contained in the grounds were raised before Mr Glass at trial, and he dealt with them in his statement of findings.

9. He was aware of the discrepancies in the prosecution's evidence that have been pointed out, and he dealt with them, as he was bound to do. Insofar as I can see, his resolution of those issues cannot be faulted.

10. The issue that was not raised at trial is an emphasis on the fact that there had been no attempt by the appellant to collect the money, that is no more than invitation to me to speculate.

11. This, like so many cases, was a case that revolved around the credibility of the witnesses, both for the prosecution and the defence - the appellant himself. The person appointed to resolve issues of credibility is the trier of fact - the trial magistrate. It is not for me, or any appellant judge, to usurp that function.

12. From his very thorough statement of findings, it is quite clear that Mr Glass understood the evidence that had been given before him, that he analysed that evidence and that he applied it correctly. He had the advantage - and it is an advantage that I do not have - of having heard and seen the witnesses, including the appellant, give evidence. He was aware, and he demonstrated in his statement of findings, that even though he disbelieved the appellant, the burden lay on the prosecution to prove the appellant's guilt on the charge.

13. I have to say, despite Mr Mitchell-Heggs' best endeavours this morning - for which I am indebted - that there is nothing in his statement of findings to indicate that Mr Glass' approach to the evidence or the case was in any way wrong. It is not for me to substitute any view that I may have on reading through the appeal bundle for his view of the veracity of witnesses.

14. I am satisfied that Mr Glass' conviction of the appellant on the charge is unassailable on appeal, and therefore the appellant's appeal against his conviction is dismissed.

15. I turn to the appellant's appeal against sentence.

16. As may be expected, given his former position as a police officer, he has no previous convictions. As has been pointed out to me by Mr Difazio, for the respondent, this was a serious case. It involved a pre-meditated use of deceit by a police officer - a man of many years service - who abused his office to add credence to that deceit. Mr Glass took a starting point of 12 months imprisonment. He substantially reduced that by six months to take account of the appellant's previous good character and his good police record. In the circumstances of this case I cannot say that a sentence of six months immediate imprisonment is either manifestly excessive or contrary to law or principle, and the appellant's appeal against sentence is therefore dismissed.

Representation:

Mr Difazio, Senior Government Counsel, for HKSAR

Mr Mitchell-Heggs, instructed by Messrs Yuen & Partners, for the Appellant