The Queen v. Lo Ka Kun
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IN THE SUPREME COURT 1987 No. 854 BETWEEN THE QUEEN and LO KA-KUN ________________ Before: Roberts, C.J. (Sitting as an additional High Court Judge) Date: 5th November, 1987 ________________ J U D G M E N T ________________ 1. The appellant was convicted by a magistrate of attempted theft and sentenced to six months' imprisonment, suspended for twelve months. He appeals against his conviction but not against sentence. 2. The case against him depended upon the evidence of police officers, who testified that on 10th June at around mid-day they had boarded an east-bound tram in the Central District of Hong Kong with two of their colleagues in order to observe the activity of a group of three men, one of whom they said was the appellant. 3. During the east-bound journey of the tram, it was alleged that as a female passenger carrying a shoulder bag made her way to the exit of the tram, one of the three men followed her and unzipped her bag while the appellant and one of the other men obstructed her exit from the tram. The woman was seen to pull the bag towards her and leave the tram, followed shortly afterwards by the group of three men who had been observed by the police. 4. The three men walked to the other side of Des Voeux Central and waited there for another tram which they boarded. The tram set off in a west-bound direction. Two of the police officers chased the tram along the roads caught it up at a later stop and boarded it. On the lower deck of the tram they observed a similar incident to the one which had taken place on the east-bound tram. 5. The appellant was seen standing close to another woman carrying a shoulder bag and when the tram came to a stop one member of the group blocked the woman’s exit. The appellant and another man used plastic bags which they were carrying to shield the lady's bag from general view, while the third man unzipped the zipper of her shoulder bag and put his hand inside. The woman managed to push her way out of the tram and alight from its followed by the three men .who were then arrested by the police officers. 6. The first two defendants, who were also convicted, gave no evidence and called no witnesses. The third defendant, who is the appellant, did give evidence. He admitted that he had been carrying a plastic bag and that he had been present on the west-bound tram, that is to say, the second tram. He denied having been on the east-bound tram at all and insisted that he was only on the second tram because he was on his way to work and got off at the stop nearest to his office. He said that he had no knowledge of the other defendants and that he had not been with them at the time. 7. Mr. Wong put forward a number of arguments with his usual persuasiveness. These were essentially arguments of fact, the submission being that various defects in the reasoning of the magistrate should lead me to the conclusion that the conviction was unsafe. 8. The first of the grounds was that the magistrate gave no weight to the certificate from the appellant’s employer which, it was said, supported the appellant's account that he got off at the Gilman Street tram stop in order to attend his office. 9. It is clear to me from the magistrate's statement of findings that he was well aware that it was part of the defence that the appellant was on his way to work that morning and, indeed, nobody disputes that it was-at the Gilman street tram stop that he alighted. The difficulty about this argument, however, is that it is of little assistance to the appellant, if the police evidence is accepted, that he had been on the east-bound as well as on the west-bound tram. 10. The second ground was that the police could not run along a busy street in Hong Kong in the middle of the day. As to this, there was of course no evidence before the magistrate, though perhaps it could be observed that if you can walk through the streets in the middle of the day, there seems to be no reason why you cannot run through them as well. 11. The third argument put forward was that the magistrate was wrong to accept the evidence of the police officers, since on their own evidence their presence must have been noted by the appellant in the trams. This is the kind of point that it is open to counsel to make before a tribunal of fact and no doubt was made to the magistrate in an effort to persuade him that the police evidence was unreliable and should not be accepted. 12. The fourth ground, that a pickpocket would not have pointed to his target to his accomplices in the presence of the other passengers, is a point of a similar nature. These are matters that may be of some significance in deciding the credibility of witnesses. The difficulty, from the point of view of the appellant, is that the magistrate has found that the Crown witnesses were honest and truthful and that the appellant was mendacious. These are clear findings of fact with which an Appellate Court cannot interfere without good reason and none has been shown. 13. The final ground was that the magistrate had failed to consider a discrepancy in the evidence of the two prosecution witnesses. One witness said that on the west-bound journey the appellant pushed the woman's handbag with his left hand and the other witness said that the appellant grabbed hold of it with his left hand. This supposed discrepancy was not probed further at the trial and it seems to be of such a minor nature as to be of no significance. 14. I see no grounds on which I could properly interfere with the magistrate's findings and the appeal is dismissed. Frank Wong (David K.W. Tsang & Co.) for the Appellant A.A. Bruce, Senior Crown Counsel, with V. Yim, Crown Counsel, for the Respondent. |