HKSAR v. Chu Tak Yin

HCMA792/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.792 OF 2005

(ON APPEAL FROM TMCC 1502 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 6 October 2005

Date of Judgment : 6 October 2005

Date of Handing Down Reasons for Judgment : 27 October 2005

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R E A S O N S  F O R  J U D G M E N T

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1.The appellant was convicted after trial of one charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap.210.  He was sentenced to 80 hour’s community service and a $7,000 compensation.  He now appeals against the conviction. 

The allegation

2.The allegation is that he stole $7,000 cash at “No.4204, ATM of Heng Sang Bank, G/F, Tin Shui Shopping Centre, Tin Shui Wai, Yuen Long, New Territories”, the property of a Mr Wan Kai-yuen.

The evidence

3.The is how the magistrate summarized the case in his Statement of Findings :

“     During the trial the prosecution called 1 witness Mr. Wan the alleged victim of the charge (PW1) and the defendant gave evidence himself.

Apart from the live evidence certain facts were admitted pursuant to section 65C of the Criminal Procedure Ordinance Cap.221 (P3 refers).  These included the fact that the defendant had lined up directly behind PW1 whilst he (PW1) was at the ATM and that the defendant had used the ATM after PW1.  By consent a set of photographs (P1(a)-(i)) which had been reproduced from a compact disc (P1) containing security camera footage of the ATM were produced and this confirmed the use of the ATM by PW1 and the defendant one after the other.

PW1’s evidence was that he had at around 12 noon on 29^th October 2004 withdrawn HK$7000 from the ATM but had forgotten to take the money because he had been talking on his mobile phone.  After leaving the ATM he had realised that he had not taken the money and noticed the defendant walking away in a hurried pace.  He had shouted asking whether he had taken the money and the defendant had started running.  He had chased after the defendant but had eventually lost him and made a report to the police.

The compact disc (P1) containing the footage of PW1’s and the defendant’s activities at the ATM was played both to PW1 and the defendant during the course of their evidence.

Under cross-examination PW1 agreed that he had been distracted by the phone call but denied a suggestion that he had taken the money away.  He further denied that after taking the money he had dropped it.

The prosecution case closed.  I found a case to answer (there were no submissions) and the defendant elected to give evidence.

The defendant had a clear record and was a construction site worker.  He testified that he had only used the ATM to check the balance of money in his account and that at the time he used the ATM no money had been left there.  He had thereafter walked away in an ordinary manner.  He was cross-examined.

The defence case closed and I considered submissions.”

Magistrate’s findings

4.What follows is the magistrate’s findings :

“      The issues in this case were fairly narrow.  It was not disputed by the defence that PW1 had withdrawn the HK$7000 but what remained to be resolved was whether when the defendant approached the ATM the HK$7000 was still there and if so whether the defendant took it dishonestly.

In this regard I found PW1 had given his evidence in a straightforward manner and I found him an honest and reliable witness.  I accepted that he had been distracted by his mobile telephone at the ATM and that as a result he had forgotten to take the HK$7000 which he had withdrawn.

In coming to that conclusion I took into account what the defendant said in his evidence as well as his clear record.  If the defendant’s version was correct then his evidence implied that PW1 had taken the HK$7000 from the ATM and somehow mislaid it.  This suggestion was rejected by PW1 in the witness box and I also rejected it as wholly absurd.  I rejected the defendant’s evidence where it conflicted with that of the prosecution.  The defendant’s innocent explanation was I found untrue and given that the irresistible inference to be drawn was that when the defendant approached the ATM he had found the HK$7000 and taken it dishonestly.  This of itself was sufficient to found his guilt and was supported by his behavior thereafter which I accepted was as described by PW1.  I was satisfied that out of a consciousness of guilt the defendant had run in order to flee the scene or to get away from PW1 after he was confronted about the money.  All the essential elements of the charge were made out beyond reasonable doubt.  I convicted the defendant.”

The present appeal

5.The appellant filed no specific reason in his Notice of Appeal.  Before me, he repeatedly said that he had not taken the money, and that PW1 had made a false report.

6.The appeal is without merit.  I can find nothing wrong with the magistrate’s assessment of the evidence and his conclusion.  The appeal is dismissed.

Mr Lai Kim Wah Derek, SGC of Department of Justice, for HKSAR

The Appellant in person