HKSAR v. Chan, Wai Kenny

HCMA775/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.775 OF 2006

(ON APPEAL FROM KCCC 2917 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 29 September 2006

Date of Judgment : 29 September 2006

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J U D G M E N T

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1.The appellant was convicted after trial of an offence of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210.  He was sentenced to 6 months’ imprisonment.  He now appeals against the conviction. 

Prosecution case

2.There was only one prosecution witness (“PW1”), a young lady aged 15.  According to PW1, she arranged to meet up with the appellant, someone she came to know via the internet, on that day in question.  The appellant did not turn up as arranged initially but eventually he turned up and the two of them then went to a karaoke at Argyle Centre.  They went inside a room and chose songs to sing.  They were there for about 15 minutes when the appellant indicated he had to go to the washroom.  He never returned.  PW1 found her wallet containing some cash and her Nokia mobile phone missing from her handbag, which had been placed on the sofa between her and the appellant.  She said she had last seen the said wallet and phone when she was with the appellant and going up the escalator to the said room inside the karaoke.  She later made a report to the police.  The appellant never contacted her again.  She did not contact the appellant as the phone number was stored in her mobile phone which went missing.

Defence case

3.The appellant gave evidence to the effect that when they met up on the day in question, PW1 had told him that she wanted to replace her mobile phone but her father did not approve.  The appellant then suggested to PW1 to sell the phone and then tell her father she had lost it.  PW1’s father would have to buy PW1 a new phone then.  According to the appellant, PW1 said it was a good idea.  They then went to a game centre before going to the karaoke place.  After going into a room with PW1 for about 15 minutes, he received a call from a friend, telling him to go home as something was the matter with his family.  The appellant then told PW1 he had to leave due to some urgent matter.  PW1 was not pleased with his departure.

4.The appellant said that as he had borrowed money from finance companies.  People had gone to his home address to cause nuisance, such as splashing paint on the door.  On the day in question his friend called him to say someone had gone to his home to cause nuisance.  His father was then at home.  He had to leave urgently to deal with the matter.  He admitted he did not ask his friend what kind of nuisance was being caused nor did he call his father to confirm.

5.The appellant also testified that he received a number of calls that afternoon but the caller did not say anything.  He heard noises which sounded like those at a karaoke so he thought it might have been PW1 who was calling him.

6.The appellant further testified that he was married to someone from the Mainland on 19 December 2005.  That is the same day he first met PW1.  He further said he got married at 9:30 a.m. that morning then went to meet PW1 at about 2 p.m.

Findings of the learned magistrate

7.After setting out the evidence, the learned magistrate evaluated the evidence and found PW1 to be an honest and credible witness who had given her evidence in a straight forward manner.  Her evidence was simple yet cogent and without embellishment.  The learned magistrate found PW1’s evidence on the whole consistent and inherently credible.  On the other hand, the learned magistrate did not find the evidence of the appellant “worthy of credit”.  The learned magistrate found the appellant guilty as charged.

Grounds of appeal

8.The appellant is not legally represented before me.  Basically he repeats his version tendered in court before the learned magistrate.  He explained how he already made a report to the police about the nuisance caused by the finance companies to his home and how he was not able to call his own father because his father would not give him the mobile phone number or the secret code necessary to activate the home phone.  The appellant complained that the learned magistrate did not accept his evidence.

Judgment

9.The learned magistrate is the fact finder of the case.  She is in the best position to assess and evaluate the evidence.  She fully understood the issues involved and dealt with the evidence carefully.  She is fully entitled to accept the evidence of PW1 and reject that of the appellant.  On the evidence she accepted, an irresistible influence to be drawn was that the appellant stole the items involved.  The conviction is neither unsafe nor unsatisfactory.  The appeal is therefore dismissed. 

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

The Appellant, in person