HKSAR v. Le Huu Nghi

HCMA 961/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 961 OF 2004

(ON APPEAL FROM FLCC 2019/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 23 November 2004

Date of Judgment: 23 November 2004

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J U D G M E N T

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1.This is an appeal against conviction and sentence.  The trial and appeal were set down in Chinese but at the hearing of this appeal because the Vietnamese interpreter is not conversant with the Chinese language, upon the agreement of both the Appellant and counsel for the Respondent, I have decided to hear the appeal in English in order not to waste time.

2.The Appellant was convicted after trial of one charge of theft and was sentenced to 20 months’ imprisonment.  The facts of the case was that PW1, who was an off-duty police officer, noticed the Appellant in a shopping centre in Tuen Mun together with another male and he considered them to be suspicious because they were paying attention to passers-by who were carrying knapsacks and handbags and so he decided to keep them in his sight.

3.PW1 kept a distance of about a one meter away from the two men.  The time was about 5:35 pm that day and when he followed the two men to an escalator, he saw he was able to see the 1^st Defendant in the case using his hand to pull at in a man’s waist-bag and he noticed that this object was actually a string attached to a mobile telephone.  And he also saw the 2^nd Defendant, who is the Appellant in this case, move his body in order to block the view of the 1^st Defendant’s action.

4.When the man stepped onto the escalator, the 1^st Defendant did not continue to pull the string and he and the Appellant then turned and left the scene.

5.After the prosecution witness had finished giving his evidence, both Defendants in the case elected to give evidence.  The defence evidence was that they denied the allegations of the prosecution witness and according to both Defendants they had met each other accidentally and the Appellant had decided to accompany the 1^st Defendant to buy a pillow.  The 1^st Defendant had agreed that, sometimes he did notice people’s knapsacks because he hope that eventually he can buy one.

6.The 1^st Defendant said he appeared to be nervous that day because he was in a hurry to go home to cook and the 1^st Defendant denied that on that day they had walked toward the escalator on the 1^st floor.  The Appellant denied that he was looking all over the place or noticed anybody’s handbag.  The Appellant had admitted on that day that he and the 1^st Defendant did take the escalator on the 1^st floor.  After all the witnesses had finished giving their evidence, the learned Magistrate had to accept the credibility and reliability of each of the witnesses.  The learned Magistrate found that PW1 was an honest witness and did not exaggerate or disclose any buyers toward the Defendant.

7.At the end of the day, the learned Magistrate decided that he could rely on and accept the evidence of PW1.  He, however, also decided upon analysing the evidence of the two Defendants that they were lying because there were inconsistencies in their evidence and he concluded that they were not credible and not reliable witnesses.  At the end of the day, the learned Magistrate, on the facts, found that, relying on PW1’s evidence, that the charge against the Appellant and the co-Defendant was proved. 

8.When the learned Magistrate considered the sentence to impose, he was told that the Appellant had 30 previous convictions, 5 of which were related to theft.  The learned Magistrate considered that this type of offence called for an immediate custodial sentence.  And he also observed that the Appellant had been in prison before and that did not seem to have deterred him from committing the offence again.

9.There were no mitigating circumstances that he could see and so the learned Magistrate sentenced both Defendants to 20 months’ imprisonment each.  The learned Magistrate, also, at that time, considered that the Appellant had in June been convicted of shop theft and was serving a 3 months custodial sentence and that the Appellant was on bail for that shop theft when he committed the present offence.

10.So considering all the circumstances, the learned Magistrate ordered that the 20 months’ imprisonment for this offence will be consecutive to the 3 months that the Appellant was serving.

11.The Appellant appeared in person in his appeal and in his grounds of appeal against conviction, he again stresses his innocence and told this court to look into the facts and to consider that he is free of blame.  I have read the facts in this case, PW1’s evidence was very clear about what he saw both Defendants were doing at the time of the offence.

12.The learned Magistrate had a discretion to believe him or not believe him and the learned Magistrate in choosing to believe PW1 and not to believe either of the Defendants was making a finding of fact after hearing the witnesses give evidence. 

13.It had been said time and time again by the court on appeal that findings of facts by a judge sitting alone are rarely disturbed by a court on appeal, unless it can be shown that the learned Magistrate or the judge sitting alone had committed an error.  The simple reason being that he, the judge, had observed the witnesses giving evidence and he is the best person to make that finding of fact while the court on appeal, has no opportunity of observing the various witnesses.  I have read the transcript and I had read the learned Magistrate’s Statement of Findings and I do not find that the learned Magistrate had made any error in law or procedure or on the facts.  So I find no merit at all in the appeal against conviction and the appeal against conviction is dismissed.

14.Now, I turn to the appeal against sentence.  The Appellant’s ground is that he is not a thief and so asked this court to look into his sentence.  Taking the circumstances of his case into account, the poor record of the Appellant, the 20 months’ imprisonment, although severe, is not manifestly excessive.

15.This type of crime is on the rise and taking into account that the conviction was after a trial, the learned Magistrate was therefore not wrong when he said that he could find no mitigating circumstances in this case. 

16.I do not feel, either, that he was wrong in making the 20 months’ imprisonment consecutive to the 3 months’ imprisonment that the Appellant was serving at the time.  So the appeal against sentence is also dismissed.

Mr Jackson Poon, SGC, of Department of Justice, for the Respondent

The Appellant, in person