HKSAR v. Zhang Ke

HCMA393/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.393 OF 2005

(ON APPEAL FROM ESCC 902 OF 2005)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 2 August 2005

Date of Judgment : 2 August 2005

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J U D G M E N T

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1.The appellant was convicted on 2 April 2005 of one charge of theft and was sentenced on the same day to 10 months’ imprisonment.  He now appeals that conviction. 

2.The facts alleged were that a lady had gone to Café de Coral in Kyoto Plaza, Causeway Bay at about 8 o’clock with her boyfriend.  They sat at a four-seated table.  She placed her handbag on the seat next to her.  At one point, she went to the lavatory and when she returned her handbag was still there.  But shortly after that, when she went to leave, she noticed that her handbag was missing. 

3.Shortly after that, the police arrived and told her that her handbag had been found and showed her a bag.  She identified that handbag as being hers and the contents of it as belonging to her.

4.Further evidence was given by a woman police officer who testified she saw the appellant leaving exit to Café de Coral in haste.  He was proceeding towards Causeway Bay MTR Station.  He had a black rucksack on his back. 

5.Being suspicious, she and the police party intercepted him and upon searching the rucksack a lady’s handbag and its contents was found inside.  She testified that the appellant’s two-way permit was also taken out of the rucksack and shown to the police.

6.The appellant gave evidence and advanced his case by cross-examination.  He said that he had eaten at Café de Coral, the same café as the young lady, with three clansman that day at about the same time as she.  

7.He said that on finishing his meal he saw a black rucksack.  He said he recalled that a lady had been sitting there alone and saw that she was at the doorway leaving.  He picked up the rucksack and rushed after her, seeing her entered the Causeway Bay MTR Station.  There, he said, he was stopped by the police.  He said he had never opened the rucksack and that he gave his two-way permit to the police from the pocket of his jeans and not from his rucksack.  He said that his friends were nearby when he told the police the bag belonged to the lady. 

8.The magistrate considered the evidence with care.  He found that the young lady was not alone, that she did not leave the café prior to the appellant, and that she had not placed her bag in the rucksack.  He said this :

“Thus for the defendant’s evidence to be credible.  I must accept that whilst PW1 was in Café de Coral, the bag was taken from the seat beside her.  Then placed in the black rucksack which was left on the floor.  This person must also have been a woman, who then left without taking either the rucksack or the bag which was inside.

To accept this would clearly strain the bounds of credulity.”

9.I have considered with care the magistrate’s findings and can find no fault with his approach either to the facts or to the law.  The appeal is dismissed.

Ms Mary Sin, SADPP of Department of Justice,  for the Respondent

The Appellant in person