HKSAR v. Ali Amjad

HCMA689/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.689 OF 2005

(ON APPEAL FROM KCCC 1707 OF 2005)

---------------------------------

BETWEEN

---------------------------------

Before : Hon Gall J in Court

Date of Hearing : 5 August 2005

Date of Judgment : 5 August 2005

---------------------------------

J U D G M E N T

---------------------------------

1.The appellant was jointly charged with another with one charge of theft and was convicted on 28 June 2005 of that charge of theft.  He was, on the same day, sentenced to three months’ imprisonment.  I will deal with the sentence later.  He appeals both conviction and sentence. 

2.The case for the prosecution was that the appellant, on 17 March 2005, was observed by police officers in a Wellcome Supermarket at Yen Chow Street, Kowloon.  Evidence was given by a woman police constable that she saw one man looking at the rack displaying alcoholic drinks whilst another man who was the appellant was at a nearly rack also inspecting the goods for sale.  She said that they met and chatted and then went back to the racks of goods that they had been inspecting.  She testified that she then saw the appellant opened a package of blades for men’s shavers.  She saw him take the blades out of the packet and walk to the 1^st man.  They again parted.  She then saw the appellant open a second package, take the blades out in the same manner and again go to the 1^st man who was the 1^st defendant in this charge and speak to him.  She said that she observed in the course of that conversation the appellant handing those blades to the 1^st man who put them in the pocket of his overcoat.  She observed both of the men leaving the supermarket without making any payment.  They were intercepted and in the clothing of the 1^st man were found a large number of blades for shaving.  Nothing was found in the possession of the appellant.

3.The appellant gave evidence.  He said he went alone to the supermarket, he bought a bottle of water and he showed the receipt to the police.  He came across another man who was also from India and had a conversation.  He saw a box of razor blades, he said, he found interesting and out of curiosity he opened the box to see what was inside but that he took nothing from the box, that he never handed any goods to the other man and that he never stole from the supermarket. 

4.The case was one which was based on fact.  It was a matter of whom amongst the witnesses the magistrate believed.  The magistrate said this about PW2, the WPC who observed the taking of the blades by the appellant and his handing of them to the other man :

“I found that PW2 was an honest and truthful witness.  I was satisfied she told me the truth without mistake, misunderstanding or exaggeration.  Her evidence was reasonable.  I accepted her evidence and attached full weight.”

5.In respect of the appellant, he said this :

“D2 gave evidence.  I found that he did not tell me the truth.  His evidence was unreasonable and unbelievable.  It was impossible and hard to imagine that it was merely a coincident that his just came across friend who by chance had stolen exactly the same [sic] sort of good he had opened to have a curious look.  I rejected his evidence on the area which was challenged by the prosecution.”

6.The magistrate properly did not use his disbelief of the appellant’s evidence to convict him but looked to the prosecution evidence to establish whether he was sure upon that evidence that the prosecution case was made out.

7.I have considered carefully the evidence all has been said to me this morning by the appellant and the reasons given for conviction by the magistrate.  I am satisfied that his approach to both the facts and to the law cannot be faulted and the appeal against conviction is dismissed.

8.There is also the appeal against sentence.  The magistrate took the view that theft was serious offence took three months as the starting point.  He could not see any justification for any discount by way of mitigation and that was the sentence he passed upon the appellant.  I cannot criticize that sentence which is an entirely appropriate one for the circumstances of the offence.

9.The magistrate then went on to activate what he thought was a suspended sentence.  On 8 June 2002, the appellant was convicted of one charge of theft and was sentenced two month’s imprisonment suspended for three years and was also fined a sum of $1,000.  It was clearly mistakenly in the mind of the magistrate that this suspended three years’ sentence was still active on 28 June 2005 when he sentenced the appellant.  In fact it was not.  The suspended sentence had expired on 7 June 2005 and was not in existence at the time of his sentence.

10.I have been addressed by Ms Chan, SGC of the Department of Justice, who satisfied me that the relevant date for the activation of a suspended sentence is the date upon which a subsequent conviction is recorded.  The court having power under sections 109C and 109D of the Criminal Procedure Ordinance to deal with a suspended sentence upon further conviction.  I will not set out the sections but I am satisfied a reading of those sections that a conviction on 28 June 2005 was incapable of activating a three-year suspended sentence imposed on 8 June 2002.

11.The magistrate in passing sentence activated what he thought was a suspended sentence ordering one month to be served concurrently and the rest which was a period of one month to be served consecutively to the three months’ sentence which he had passed.  He had no power to make that order and the appeal against sentence is allowed to the extent that the purported activation of the suspended sentence is set aside and the sentence of three months’ imprisonment is confirmed.

12.I understand that the appellant is to be released on 7 August 2005 in two days’ time.  His release in the circumstances should be immediate.

Ms Denise Chan, SGC of Department of Justice, for the Respondent

Appellant in person