The Queen v. Wong Tat Kei and Another

HCMA001020/1986

BETWEEN

Coram: Roberts, C.J.

Date: 5 November 1986

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JUDGMENT

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1. WONG Tat-kei ("D.1") and YUEN Chun-tung ("D.2") were convicted of theft. D.1 was also convicted of resisting arrest. D.1 was sentenced to 12 months' and 3 months' imprisonment, the sentences to run consecutively, and D.2 to 12 months' imprisonment.

2. At the outset of the hearing before me, their counsel withdrew their appeals against sentence, which are accordingly dismissed.

3. On 14th June, this year, an off-duty police officer, P.C. 23945 ("P.W.1"), was about to board a train at Kowloon Tong Railway Station, when he saw the two defendants, also in the act of boarding the train. As he watched them, he saw D.1 remove a quantity of banknotes from an open zippered-pocket in the victim's trousers. Immediately afterwards, D.2 removed further notes, which he handed over to D.1, from the same pocket.

4. P.W.1 followed the defendants into the same carriage and revealed his identity as a police officer to them, informing them that they were under arrest. D.1 thereupon dropped the money, which he was holding in his hand, onto the floor of the carriage, where P.W.1 recovered it.

5. A struggle took place on the train, at the end of which P.W.1 managed to put D.1 under arrest. When the train arrived at Tai Wai Railway Station, a second police officer arrived, heard a noise and helped P.W.1 to arrest the two defendants.

6. It is to be noted that neither defendant chose to give evidence before the magistrate, so that the appeal can succeed only if the appellants can show that the magistrate was not justified in reaching the conclusions which he did on the basis of the evidence which was produced by the prosecution alone.

Inconsistencies

7. The main ground of appeal is that there were such serious inconsistencies in an important part of P.W.1's evidence that the magistrate should have found that it was unsafe to convict.

8. This argument rests upon passages in the evidence relating to the zippered-pocket in the victim's trousers from which the stolen money is said to have been taken. The first reference to this matter by P.W.1 is as follows -

"When it happened one of them took out a lump of money - banknotes - and some still remained in the pocket so the other man took the remaining money out from the Chinese man's trouser pocket."

9. This is a neutral statement, in that it does not refer to the zippers which were on the pocket of the victim's trousers.

10. In the early part of his cross-examination, P.W.1 states -

"The victim wore a normal pair of trousers but they had a zipper near the knees, above the knee near the thigh; in the style of "Jeans" but the material was trousers. The zipper was on the right. The money was being taken out of the pocket with a zipper. When he took the money the zipper was already unzipped."

11. In his submission to the magistrate at the end of the prosecution case, the defendants' solicitor argued that this passage meant that P.W.1 was admitting that he did not see D.1 unzip the pocket in queston.

12. It is, I suppose, possible to place that interpretation on the passage. On the other hand, it may mean no more than that the zipper was open at the point at which the money was taken out of the pocket.

13. At the beginning of his cross-examination by D.2, P.W.1 says -

"At that time I didn't notice the zipper. It was only when they took money that I noticed the zippered pocket. I was then behind the victim, not directly, he was to my front on my right side. I saw D1 actually insert his hand in the pocket. He had to unzip the zipper. I only saw him put his hand near the zipper, unzip it and withdraw the money."

14. This is a clear statement by PW1 that he saw Dl unzip the zipper. I do not find in the earlier passage anything which necessarily conflicts with this. As I have indicated, this supposed inconsistency was put to the magistrate and he must have rejected it. The other main argument put forward on behalf of the appellants, was that the position where the police witness stood made it impossible for him to have seen what happened, as he described it.

15. This is essentially a case which depends upon the credibility and reliability of the main police witness. The magistrate correctly directed his attention to this and found that he accepted him as a person of truth, who honestly gave his evidence as accurately as he could.

16. He found, as a fact, that both the defendants had put their hands into the trouser pocket of the man who was boarding the train and had taken money from it. This is another finding of fact which is based upon the magistrate being satisfied, as he was, that the principal police witness was accurate and honest. I can see no grounds on which I could properly interfere with that finding, in spite of Mr. Hingorani's persuasive arguments on behalf of the appellants. The appeals of both appellants are dismissed.

Representation:

Mr. J. Hingorani (C.W. Leung & Co.) for both Appellants.

Mr. S. Leung, Asst. Crown Prosecutor, for Crown