HKSAR v. Pham Thi Nga

HCMA 755/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 755 OF 2004

(ON APPEAL FROM KCCC 5267/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 15 October 2004

Date of Judgment: 15 October 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 was charged with two others on one charge of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210.  It is alleged that she together with the two other co-defendants had stolen a Sony Ericsson mobile phone.

2.The trial was conducted in Chinese and this appeal was listed to be heard in Chinese but I then discovered that the interpreter for the Vietnamese language is only licensed to translate between English and Vietnamese.  So in order not to cause any delay, I was prepared to conduct the hearing in English.

3.Both the Appellant’s and the Respondent’s counsel had no objection to having the appeal heard in English. 

4.The prosecution called 5 witnesses at the trial, PW1 was the owner of the telephone and she said that when she was on the street, she reached inside her pocket to get her telephone and discovered that it was missing.  She agreed that she had crossed Argyle Street and Sai Yeung Choi Street.  There were a lot of people on that road, and she did feel that somebody had bumped into her once or twice.

5.PW2 was on patrol in the vicinity of Argyle Street and Sai Yeung Choi Street and he saw three persons, one of them was the Appellant.  D3 was in the middle, he was walking in between the D1 and the Appellant.  PW2 saw that when the three Defendants walked up behind PW1, D1 used his hand to take out something from PW1’s pocket and that object had a red string and then PW2 saw D1 give that object to the Appellant.  And then the three of them walked away.  PW2 then saw that the Appellant was holding the object and when she arrived outside No. 83, Argyle Street, he saw the Appellant dismantle the telephone in her hand.  Then these three Defendants entered the shop, the police officer followed them into the shop and PW2 found the Sony Ericsson phone in the hand of the Appellant and the telephone had a red string attached to it.

6.When PW2 examined the telephone, he found that there was no SIM card inside, PW2 asked the Appellant from where did she get the telephone and the Appellant remained silent.

7.Subsequently, the SIM card was found from the trousers’ pocket of D3, that SIM card was subsequently given to PW5 who used this to contact the owner of the telephone, i.e. PW1.

8.PW3 was also on patrol that day and, upon receipt of information, he arrived at the shop and met up with PW2 and PW4.  When he arrested D3, from D3’s pocket he found the SIM card.  PW4 gave evidence and said that he was standing outside a shop called the Apple Shop and opposite the Apple Shop is Argyle Street and Sai Yeung Choi Street.  And he saw the 1^st Defendant together with another male and female walking toward them.  And he saw the 1^st Defendant steal an object. 

9.He arrested the 1^st Defendant and under caution the 1^st Defendant said that he did steal the telephone and that it had nothing to do with anybody else.  PW5 said that he went to the shop and he was given the telephone and the SIM card and he used this to telephone PW1.

10.Subsequently, PW1 came and identified the telephone as belonging to her and also the SIM card.  And these were brought back to the police station.  After the prosecution witnesses gave evidence the Appellant elected to give evidence.  She said that on the day of the offence, it was the 3^rd Defendant who telephoned her telling her that he would take her to go and look for her husband.  They took her to a place in Mongkok but she saw that person was not her husband.  The three of them then left the premises and on the way, a friend of the Appellant had telephoned her and that is why she did not walk very close to D1 or D3.  She had taken her telephone to the telephone shop in order to have it repaired and she was alone in that shop.  Subsequently she saw the 1^st and 3^rd Defendants enter the shop and then she paid for the repair of her telephone and then the police officers entered.  She denied that she had received any stolen telephone or had dismantled a stolen telephone.

11.She also called as witnesses, the 1^st and the 3^rd Defendants who supported her evidence.

12.The learned Magistrate, after all the witnesses have given evidence, analyzed the evidence of the witnesses and at paragraph 20 of his Statement of Findings, he was aware that there were some inconsistencies in the evidence.  But he did not consider that these were important inconsistencies.  As far as the evidence of the prosecution witnesses were concerned, the learned Magistrate after a careful analysis, accepted them as truthful and honest witnesses.

13.The learned Magistrate also found that the only reasonable inference to draw from the evidence was that the thing that was being taken from PW1’s pocket was indeed the Sony Ericsson phone. 

14.The learned Magistrate, upon analysing the Appellant’s evidence, regarded her evidence as unbelievable and offends common sense.  I am not going to repeat what he said here but his reasons are at paragraphs 22, 23 and 24 of his Statement of Findings.

15.At the end of the day, the learned Magistrate found that the prosecution had proved its case beyond the reasonable doubt against the Appellant and convicted her.

16.The Appellant at the trial was represented by counsel, but on appeal she represented herself and she opened her appeal by asking for statements made by the police witnesses.  Upon being told that her counsel at trial would have had copies, she then went on to submit that the brief facts in the case was entirely different from the evidence given by the prosecution witnesses at the trial.

17.I called for a copy of the brief facts from counsel for the Respondent, Miss Leung, who very quickly supplied it to me.  Upon reading the brief facts, it was found that the Appellant was wrong and I had told her so and then the Appellant gone on to criticize the prosecution for not having sent the mobile telephone for finger-printing and also criticized the learned Magistrate for not accepting her evidence, or for that matter, the evidence of her witnesses.

18.She then accused the learned Magistrate of violating her human rights.  I had tried to explain to the Appellant that she was seen by the police officers to have accepted the telephone from the hands of D1.  She was found with the telephone in her hand.  There was no need for finger-printing evidence.

19.The prosecution case relied on the oral evidence of the police officers.  It was the learned Magistrate’s duty to analyse the evidence and at the end of the day to conclude on the fact as to whom to believe.  It was entirely a matter for the learned Magistrate, after assessing the evidence, to come to the conclusion that he did not believe the Appellant or her witnesses.

20.I have read the learned Magistrate’s Statement of Findings and the learned Magistrate had given cogent reasons as to why he did not accept the Appellant’s evidence.  There is absolutely no basis for the Appellant to criticize the learned Magistrate for being prejudiced against her.

21.I have read the learned Magistrate’s Statement of Findings and the learned Magistrate had ample evidence before him to convict the Appellant of this charge.

22.The Appellant said that she was not seen to have taken the phone from PW1’s pocket.  The charge charges her as acting in concert with the others to steal the telephone.  So, she does not necessarily have to be the one to put her hands into the pocket to steal.  She played a part in the theft of this telephone.

23.So the learned Magistrate had therefore rightly convicted the Appellant of this charge and I see that the learned Magistrate in doing so had committed no error either in fact or law when he did so.  So the appeal is dismissed.

Miss Rosaline S Y Leung, SGC, of Department of Justice, for the Respondent

The Appellant, in person