The Queen v. Lee Hei Keung

CACC001000/1983

BETWEEN

Coram: Jones J.

Date: 18th August, 1983

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JUDGMENT

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1. On the 9th June 1983 the appellant was convicted at Causeway Bay Magistracy, on a charge of theft and was fined $500. He appeals against his conviction.

2. The facts show that P.W.1 Lo Fung Kwan assisted her mother at a newspaper stall outside the Pearl City Restaurant in Paterson Street, Causeway Bay. Sometime after 8.00 a.m. on the 13th March 1983 she saw a man holding her mother's money bag which he dropped into a taxi. The man boarded the taxi and sat in the rear seat. The taxi then drove away. P.W.1 took the registration number of the taxi which was CP 1150 and reported the incident to her brother-in-law P.W.2 Chan Siu Ming who chased the taxi on his bicycle, but he could not catch up. However, he saw the taxi again when it returned a short time later. He said that he spoke to the driver and asked him to return the money bag. He identified the appellant as the driver and saw a passenger in the rear seat. P.W.2 was ignored and the taxi moved off after knocking down his bicycle which had been placed in front of the vehicle. Later he identified the appellant's co-defendant D1 as the driver of taxi number CP 895.

3. P.W.3 Chan Siu Chung was informed about the incident by P.W.1 and went in his car to look for taxi CP 1150. In Ka Ling Street he saw the drivers of the two taxis CP 1150 and CP 895 exchange their vehicles. Before they exchanged vehicles he said D1 was driving CP 1150 and the appellant CP 895. He also saw a passenger in CP 1150 who was in the seat next to the driver.

4. P.W.4 PC 12447 said that the appellant came to Causeway Bay Police Station on the 13th March 1983 at 12.30 p.m. as he was aware that the car was wanted by the Police. He told P.W.4 that a passenger boarded his taxi at Paterson Street about 8.00 a.m. who told him to drive off otherwise he would be beaten up. He drove to Hing Fat Street where the passenger alighted. He denied being involved in the theft of the money bag. Neither Dl nor the appellant gave evidence at the trial.

5. Mr. Mathews who appeared for the appellant raised various grounds of appeal with regard to the evidence of identification and inconsistencies in the Crown's evidence.

6. However, this appeal can be shortly disposed of an another ground that was submitted today because the learned Magistrate did not make a specific finding that the money bag stolen was in fact the bag that belonged to P.W.1's mother. evidence was as follows :

"I had change ready in a money bag which was inside a larger bag.

The large bag was the colour of brown paper. There was $300 odd in the bag. I left the stall and went to Pak Tak Restaurant. I went to fetch magazine from my sister's news-paper stall. I went back to my mother's news-paper stall and I saw a man holding my mother's money bag and drop it into a taxi, and that man got into the taxi and drove away."

7. The charge originally alleged that the property was stolen from Cheung Tsung who is presumably the mother of P.W.1. However although P.W.1 said that the money and the bag belonged to her mother, for reasons that were not given, the learned Magistrate after a submission of no case to answer by the appellant's solicitor amended the charge to property that belonged to P.W.1. It is not clear from the record whether the provisions of Section 27(2) of the Magistrates Ordinance were complied with.

8. Mr. Mathews submitted that the mother should have been called to prove that the bag seen by P.W.1 when she returned to the stall was the bag containing $300 and that the ingredients of dishonesty and appropriation had been established. I agree, and Mr. Fleming who appeared for the Crown fairly concedes that there was a break in the chain of the evidence. Theft was not therefore proved.

9. In the circumstances the appeal must be allowed, the conviction quashed and the sentence set aside. The fine if paid will be remitted to the appellant.

Representation:

Mr. Mathews (David K.W. Tsang & Co.) for Appellant

Mr. Fleming (Legal Department) for Crown/Respondent