HKSAR v. Tang Wai Ping

HCMA900/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.900 OF 2004

(ON APPEAL FROM FLCC 669 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 22 February 2005

Date of Judgment : 22 February 2005

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J U D G M E N T

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1.The appellant was convicted on 28 June 2004 of nine charges each relating to criminal damage.  He was sentenced to 180 hours’ community service and ordered to pay the sum of $11,800 by way of compensation.  He now appeals each of those nine convictions.

2.The case of the prosecution was that at an open area in Tong Hang Tsuen, was used by the principle witness PW1 in this matter and his son to store vehicles.  On the evening of 13 February 2004, it was the evidence that the appellant entered the premises and used a tool to damage a number of vehicles parked in the premises.  A total of nine vehicles were damaged and each vehicle formed the basis of one charge.  PW1 and the appellant were well known to each other.  They had a dispute over money which had been invested in a business venture in Africa and was at the time unresolved.

3.There were a number of inconsistencies in the evidence of PW1 and between the evidence of PW1 and other witnesses called by the prosecution.  There were also inconsistencies between the evidence of PW1 and physical exhibits produced at the trial.  The magistrate properly determined that the main issue which he had to resolve was what degree of credit should be placed on the evidence of PW1 — if he were to be believed so that the magistrate was sure, then convictions would follow; if his credit was impugned, then the magistrate could not be sure and the appellant would be acquitted.

4.Among the discrepancies argued by the appellant and referred to in Mr Chan’s grounds of appeal relates to the time when the cars, the subject of each charge, were damaged.  It is very properly conceded by Ms Cheung of the Department of Justice that the time as to when the car was damaged was material.  PW1 gave two different versions regarding the time when the car was damaged.  In the first version he stated the cars were not damaged when he made his report to the police at 8:23 p.m.  In the second version he alleged that at the time he called PW2 who answered that he had just arrived, the cars had already been damaged.  PW2 testified that he arrived at the scene at around 8:15 p.m.  The fact was the report to the police by PW1 that the appellant was seeking money from him would be contrary to the suggestion that the cars had at that point had been damaged.  It supports the appellant’s case that he had not damaged the cars and that he was there to wait for PW1.  The magistrate did not deal with this discrepancy. 

5.Ms Cheung very fairly conceives that in the absence of a resolution of this discrepancy the credibility of PW1 was not sufficient for a conviction in respect of each charge to result.  She concedes that the conviction in respect of each of the nine charges is unsafe and unsatisfactory.

6.With this, I agree and the appeal against conviction is allowed.  The convictions are quashed and the sentence is set aside.

Ms Kathie Cheung, GC of Department of Justice, for the Respondent

Mr Kenny Chan, instructed by Messrs Terry Yeung & Lai, for the Appellant