The Queen v. Cheung Leung-chue

CACC000559/1983

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 559 of 1983

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Between

Coram: Hon. Penlington, J. in Court

Date: 17th June, 1983

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JUDGMENT

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1. This is an appeal against conviction on a charge of attempted theft. Circumstances in the case were that a plain-clothes Constable (P.W.1) was on duty in the Happy Valley Race Course on the 8th of December last year when he said he saw the defendant behaving in what he regarded as a suspicious manner. In particular he said he saw him bumping into people as he moved through the crowd and he saw him put his hand into an area between a person's shirt and his jacket. He inserted his left hand between the shirt and jacket where it remained for about two seconds. He then decided to follow him at about 4 - 5 feet.

2. Mr. Bernacchi for the defendant says that it was poor evidence by identification as to whether that person was the same one who took part in a second incident which is the subject of the charge. He said that on the basis of the guidelines laid down by Turnbull, the magistrate should have held that such identification was insufficient but in fact he has not addressed his mind to this particular point at all.

3. I am satisfied that the identification of the first instance was only relevant to rebut a defence of accident and that defence was not raised. However, even if it had been, I think that the identification evidence here is well outside the dangers envisaged by the Court of Appeal in Turnbull. Quite clearly the conditions were not easy in that it was a crowded race course, nevertheless the distance between the two men must have been close. The magistrate accepted the evidence given by P.W.1. He says that he followed the person involved in the first instance and that was at a close distance and was therefore satisfied that on the evidence the defendant was involved both instances.

4. Mr. Bernacchi also suggests that the evidence given as to the second instance as inconsistent as between P.W.1 and P.W.2 who was the alleged victim. P.W.1 said that he followed the defendant to a place on the staircase between the ground floor and the first floor. There he said he saw him approached a man and inserted his left hand into his space between his shirt and his jacket and. he actually saw him put his fingers into the man's left chest pocket. He said that the defendant was holding a newspaper in the same hand, presumably to cover his actions. He said that these actions were noticed by the man. He turned his body around and tried to cover his chest with his left arm.

5. I found that evidence is while not identical is not by any means inconsistent to the evidence given by the alleged victim who is also a policeman, although off duty, he said he got a push and almost lost his balance. He did not see who pushed him. At first his left hand was touching his left chest pocket but because of this push and acting intuitively he kept his elbow even closer to his left chest pocket. When he says he kept his elbow even closer I must assume that he moved his elbow even closer. I don't think there is any basic inconsistency in that evidence.

6. The magistrate found that there was no collusion between these two witnesses. It is not by any means identical but I certainly do not think it is so inconsistent that the magistrate could not accept the evidence given by P.W.1, who was by far the most important police witness. What caused me some concern was the ground of appeal that at one stage the defendant, who was unrepresented before the magistrate, suggested to P.W.1 that he had punched him although this punch was delivered after the incident. The magistrate quite rightly informed him that if he attacked the character of the witness, he would be putting his own character a risk, although in fact he has a clear record.

7. I think when the defendant was unrepresented it is always very difficult indeed for the magistrate to advise him as to his rights so as not to inhibit the cross-examination while informing him that he may have his character to put an issue if he attacks the integrity of the prosecution witnesses. I don't think in fact this was of any great importance here. The attack is alleged to have taken place well after the incident and I think the magistrate did no more than inform the accused of what his rights were and what his danger was if he persisted in the line that he was taken. The appellant elected not to give evidence although he did say something which Mr. Leung for the Crown submits must have been by way of submission. He simply said that the C.I.D. had handled the case inappropriately, this was waste of time and upset his emotions. He said no more than that.

8. This appeal is a question of fact.  I think there is no doubt that the magistrate could have come to the conclusion he did on the evidence. However since the case of R.v. Cooper. 53. C.A.R.82 there has been a further ground of appeal, that is that even if the evidence is sufficient an appeal court if it has a lurking doubt due, to something which it simply doesn't like about the evidence can allow the appeal on that basis. I have considered the evidence here and find no such doubt. The evidence was clearly sufficient and was accepted by the magistrate, both P.W.1 the on-duty police officer who was looking for pick-pockets and P.W.2 the off-duty police officer who was simply on that occasion .a. race-goer.

9. It has been submitted that the actual wallet was not taken. Under these circumstances including the bumping of the victim, there was probably no intent to pick-pocket. I think there must be many cases when even a highly professional pick-pocket does not succeed. We now know that the accused has no record and therefore we can assume that he is not in that category. I don't think there is anything in the factor no wallet was actually taken and I think the evidence of the bumping in the victim is by any means inconsistent with the attempt by putting the victim off balance both mentally and physically.

10. Finally it is suggested that the very light sentence of being bound over and ordered to pay costs was such as to suggest the magistrate himself perhaps had a doubt. I don't think that it is so. I think it may well be the magistrate came to the conclusion and because there was no appeal against sentence he does give reasons for his sentence, that here was a case of amateur pick-pocket and that a substantial sentence, in particular a custodial sentence, was not called for and a warning would be sufficient. I think he was quite right.

11. Having considered all the grounds therefore which have been very carefully and fully argued by Mr. Bernacchi for the defendant I am satisfied that there was no ground upon which I should allow this appeal and it is dismissed.

Representation:

Samuel Leung, Senior Crown Counsel for Crown.

Brook Bernacchi (K.C.Yung & Co.) for the Appellant.