Wan Wai-yan v. The Queen

CACC000481/1983

BETWEEN

Coram: Jones J.

Date: 4th May, 1983.

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JUDGMENT

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1. On the 9th February 1983 the appellant was convicted o?two charges of theft and was subsequently placed on probation for one year. He appeals against his conviction and sentence.

2. The following facts were agreed and admitted under section 65(c) of the Criminal Procedure Ordinance.

3. The appellant was stopped by two police officers who were on patrol on the 21st January 1983, and was found to have in his possession one Citicard the property of Mr. Lam Tung Sun which he had lost in September 1982, and an identity card the property of Mr. Wong Kwai Ming which he lost on the 15th January 1983. The appellant told the police officers that he had picked up the Citicard about six months previously and had picked up the identity card at the Liberty Theatre where he was working as an usher on the 20th January 1983.

4. The appellant who is aged 17 gave evidence that he picked up the Citicard in the street between October and November 1982. He said that the card was torn and he thought that the owner had abandoned it. Although he had seen advertisements on television about bank cards he claimed that in view of the damaged condition of the card it was useless. Upon an examination of the card it is apparent that only the outer cover is slightly torn.

5. With regard to the identity card the appellant testified that he found the card when he was making a check to see whether any property had been left behind by the audience after a cinema show. He reported the matter to his team leader who told him to keep it until the owner came to make a claim. His explanation for retaining possession of the identity card was that he had forgotten.

6. The team leader Mr. Yu corroborated the appellant's evidence that he had reported the loss of the identity card. This evidence was accepted by the learned magistrate.

7. Mr. Bharwaney who appeared for the appellant attacks the finding of the learned magistrate with regard to the Citicard that the appellant acted dishonestly. He cited the case of R. v. Ghosh ⁽¹⁾ where it was held that in determining whether the accused had acted dishonestly, the test was first whether the accused's actions had been dishonest according to the ordinary standards of reasonable and honest people and if so, whether the accused himself had realised that his actions were, according to those standards, dishonest. Thus a genuine belief by the accused that he was morally justified in acting as he did was no defence if he knew that ordinary people would consider such conduct to be dishonest. However, as Mr Little submitted in reply the accused may not be believed.

8. The learned magistrate found that the appellant was lying when he said he thought that the Citicard was useless and abandoned. Having seen the card I am not surprised that she came to this conclusion.

9. Mr. Bharwaney submitted that in view of the report made by the appellant to his superior, there had been no appropriation of the identity card, but in this case it was the later act of the appellant which resulted in an assumption of the rights of an owner.

10. Again the learned magistrate disbelieved the evidence given by the appellant that he had forgotten that he still had the card in his possession. She was entitled to do so on the evidence.

11. The convictions were neither unsafe nor unsatisfactory. The appeal is therefore dismissed.

12. I have been urged by Mr. Bharwaney not to uphold the recording of a conviction by the learned magistrate. However, this is not an exceptional or appropriate case to warrant an interference with the decision of the learned magistrate.

13. The appeal against sentence is also dismissed.

(1)    (1982) 2 All E.R. 689

Representation:

Mr. Bharwaney (Peter Wong & Co.) for Appellant.

Mr. Little (Legal Department) for Crown/Respondent.