HKSAR v. Lau Chi Man

HCMA000986/2003

HCMA 986/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 986 OF 2003

(ON APPEAL FROM TWCC 354/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 15 January 2004

Date of Judgment: 15 January 2004

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J U D G M E N T

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1.This is an appeal against conviction. The Appellant had pleaded not guilty to a charge of pickpocketing and after trial he was convicted.

2.The charge was amended, at trial, to one of attempted theft from an unknown person. The facts reveal, that, in fact the person who is alleged to be unknown was actually a tourist, he had refused to come back to Hong Kong. It transpired in cross-examination of PW1, that the tourist in fact, was not aware that anybody had attempted to steal or had touched him. So therefore, had he agreed to return to Hong Kong, his assistance in this case would have been minimal.

3.It is contended by counsel on appeal, Mr Iu, that the amendment by the prosecution was not fair because counsel had no opportunity to cross-examine that tourist. Mr Iu observed that at cross-examination he may have been asked whether he had the wallet in the pocket of his trousers.

4.The Respondent's submission is that the defence had been served with a copy of the brief facts and witness statements including that of the tourist on 6 February last year. It also transpired from the evidence that PW1, had said that when the Thai tourist was asked by the police, he had taken out a wallet from his right rear trouser pocket.

5.As I have said to Mr Iu, had the defence thought that this tourist would provide crucial evidence in the case and the prosecution has failed to locate him, then the defence counsel at the time, who was an experienced counsel, would have applied for an application to stay the proceedings. No such application was made despite the fact that defence already had sight of the tourist's statement at that time. As Mr Wong for the Respondent also submitted, there were no formal requests from the defence to the prosecution to help in locating this witness. So I do not find any merit in that ground.

6.It is also set out in the perfected grounds of appeal that the Appellant also complains about amending the charge by deleting the word "wallet" from the particulars of the offence. It is clear that the prosecution was right to ask for that to be deleted in the circumstances and I see no merit in that ground of appeal either.

7.In the trial, the prosecution called 3 witnesses. The main witness is PW2. This witness was in plain clothes at the time and he noticed the Appellant at the airbus terminal area at the Hong Kong International Airport. Then he saw a tourist who had gone to the A21 bus queue. He was followed by one of the four men who were subsequently arrested. The Appellant followed that arrested person and then the Appellant himself was then followed by the other two arrested persons. When the bus queue was boarding, the Appellant took out a red checked shirt. When the tourist was about to board the bus, that first arrested person then stood aside so the Appellant was able to move to a position immediately behind the tourist. The Appellant then placed the red shirt on his left forearm and held it near the waist of the victim who had stepped up onto the steps of the bus. The Appellant was then seen by PW2, who was only standing about 3 to 4 feet away, to lift the rear part of the this tourist's jacket and used his right hand fingertips to touch the mouth of the victim's rear trouser pocket. At that stage, PW2 then moved towards the Appellant and the Appellant saw PW2 and quickly withdrew his hand and it was then that PW2 intercepted and arrested the Appellant. The Appellant was questioned by PW2 and he said he was seeing off a friend who was going to Guangzhou and that he was with the other arrested persons and the Appellant said he did not know the tourist. All of them were brought back to the police station and subsequently PW2 found the Appellant's red shirt rolled up into a lump and dumped in the cell toilet of the police station.

8.The learned Magistrate in assessing the evidence of the prosecution was well aware of the inconsistencies that had emerged in their evidence, but he considered that they were not important and that the prosecuted witnesses were honest and reliable witnesses. The learned Magistrate also properly reminded himself that the Appellant had a right to remain silent and not to give evidence, but that the Appellant's silence left the Magistrate without any explanation to undermine, contradict or explain the prosecution evidence against him.

9.A great part of the cross-examination of PW2 was about his opportunity of observation, it is also a ground of appeal urged upon me by Mr Iu. It is apparent from the transcript that the PW2 was asked and demonstrations were made in court before the learned Magistrate as to the different positions of the tourist, PW2 and the Appellant and it was alleged by the defence that the PW2 could not have seen what he claimed he saw.

10.Mr Iu also submitted that the witness had added to his evidence every time he was pressed about a certain detail. This was all canvassed before the learned Magistrate. The learned Magistrate was well aware, also, that the tourist was on the first step of the bus thus making him at a higher level than the witness. I must that when a person is making an observation, he or she would automatically adjust his position to continue his observation. He would not remain in a static position as common sense would dictate, because he is trying to see what the other person is doing. The learned Magistrate therefore had ample evidence before him to convince him that the observation of PW2 was unobstructed and he did in fact see what he said he saw.

11.As to whether the witness had embellished his evidence, it is also, again, common sense, that when a person is asked to describe his particular movements, he may not initially, give every single detail. It is only in cross-examination when he is taken step by step through every single action he made that he may then reveal those actions. So I do not find any merit in this ground either.

12.Mr Iu also submitted that the questioning by PW2 of the Appellant was indicative that PW2 was not sure about what he saw and it is clear from p. 71 of the transcript that the questions that were asked of the Appellant were general questions about what he was doing in the area, where he lived and whether he went there alone and if he knew the victim, the tourist. I also find no merit in this ground.

13.Finally, I will deal with the complaint about the notebook entry. It is clear that when PW2 wrote in his notebook, he had said that the Appellant had inserted his hand into the pocket. PW2 agreed that this was a wrong description because he said he thought the Appellant was intending to insert his hand into the pocket but withdrew it when the Appellant saw him. So actually, the fact is he only saw him touching the pocket. The learned Magistrate was well aware of this and as it had been stressed to him in the submissions of the defence counsel.

14.The learned Magistrate found that this was understandable because it was meant to be only a quick general note made at the time PW2 apprehended the Appellant and added to that is also the fact that the learned Magistrate said he found from the evidence that PW2 indeed did see the Appellant attempting to insert his hand into the victim's pocket. So again, I find that the learned Magistrate was indeed entitled to come to this view, I do not consider that this is a persuasive ground of appeal. So I do not find that there are any grounds to upset the learned Magistrate's conviction of the Appellant. I find that in all the circumstances the conviction was a proper one. So the appeal is dismissed.

Representation:

Mr Vincent Wong, SGC, for the Department of Justice, for the Respondent

Mr Thomas Iu, instructed by Messrs Cham & Co., for the Appellant