HKSAR v. Chang Wen Hou

HCMA63/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 63 OF 2007

(ON APPEAL FROM ESCC 2637 OF 2006)

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Before : Hon McMahon J in Court

Date of Hearing : 20 March 2008

Date of Judgment : 20 March 2008

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J U D G M E N T

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1.The appellant was convicted after trial at Eastern Magistracy of an offence of theft contrary to section 9 of the Theft Ordinance, Cap. 210.  He was sentenced to six weeks’ imprisonment and ordered to pay $900 compensation.  He now appeals against both his conviction and sentence. 

The prosecution case

2.The prosecution case was that on 9 May 2006 the appellant had either himself stolen or found the wallet of a university student (“PW1”) who had travelled from Hong Kong University to Sassoon Road on a minibus.  PW1 had noticed his wallet was missing shortly after 9 p.m. when he alighted from the bus in Sassoon Road.  He then went on a taxi to the Baguio Villa Terminal of the minibus, boarded it and searched it thoroughly but to no avail. 

3.The next day at about 3:30 p.m. the appellant was routinely stopped and searched by police in Des Voeux Road in the city and in his rucksack was found PW1’s wallet albeit with $900 cash missing, although PW1’s credit cards and Octopus card were still present.  Under caution the appellant said he had found the wallet on a minibus the evening before and that he intended to go to Hong Kong University to hand it in.  (The wallet contained PW1’s Hong Kong University student identification card.) 

Defence case

4.The appellant gave evidence.  He said at about 9:40 p.m. he was travelling on a minibus from Kennedy Road to Causeway Bay which, it was accepted, was a continuation of the route from Hong Kong University to Sassoon Road.  He said he found the wallet on the floor of the minibus.  He took it home after his evening out and intended to take it to Hong Kong University the next day and hand it in as he was going there in any event to inquire about attending night classes.  He was in Des Voeux Road the next day as he said that he was on his way to a medical appointment he thought he had that afternoon. 

5.The magistrate accepted PW1 and PW2 (who was the arresting police officer) as truthful witnesses.  He rejected the appellant’s evidence. 

6.Mr Osmond Lam for the appellant effectively advances two substantive grounds of appeal against conviction :

(1)	that the evidence showed that the appellant could not have been on the minibus at the same time as PW1 and the magistrate attached insufficient weight to the evidence showing the appellant travelled on the minibus after PW1 had alighted; and
(2)	the magistrate was wrong to find that the prosecution had proven the appellant intended to steal the wallet.

He initially advanced another ground, i.e. that the prosecution had changed its case during trial in that it had initially alleged the appellant had stolen the wallet when travelling on the route between Hong Kong University and Sassoon Road when PW1 was also on board the bus, so as to prejudice the appellant, but there was nothing in this.  It was quite clear from the charge and the transcript of the case that the defence at trial was well aware of the alternative basis of the prosecution case and Mr Lam did not press this ground.  

Ground 1

7.Approximately 10 days after his arrest and release on bail the appellant provided the police with an Octopus card he claimed to be his own.  That card, when examined by the police, showed that it had been used to pay for a minibus journey at 9:43 p.m. on the same route as that PW1 had used that same night.  However PW1’s Octopus card showed he had paid for his journey at 9:10 p.m.  That time gap was consistent with the appellant’s case that the wallet had been found by him on the bus after it had been lost by the owner PW1. 

8.The magistrate said in regard to this matter :

“… (1) the Octopus card produced by the Deft was not specific to him, i.e. I can see nothing, other than his assertion, to support the thesis that this journey was undertaken by him and nobody else, (2) even on the Defence suggestions, the timing of this journey did not exclude the possibility that the Deft was travelling in the same minibus in the same direction as PW1 at the earlier time of 21:10 hours, (3) the Deft produced an Octopus card only 10 days after the incident, …”

9.I am unsure as to the magistrate’s approach in this regard.  There was no suggestion that the appellant was or could have in some way become aware of the contents of the electronic data on the Octopus card before he gave it to the police.  It in any event seems a somewhat difficult task for him to find the Octopus card of a person who had travelled on the same minibus at a time after PW1 on that day, and then provide it to the police for the purpose of concocting a defence to the effect that he had travelled on the bus after PW1 had alighted.  Even if he had been able to find or fabricate such a card he would not have known what time PW1’s Octopus card would reveal when examined by police. 

10.There is little doubt, it seems to me, regardless of the 10-day delay in the appellant providing the Octopus card to the police that he had travelled on the minibus about half an hour after PW1 had alighted. 

11.The issue as to when precisely the appellant travelled on the minibus had this relevance : If the appellant was on the bus at the same time as PW1 that would suggest some unlikelihood in the appellant’s version of finding the wallet.  If the appellant had noticed the wallet on the floor as he said, and PW1 was still sitting in his seat above it or nearby then it would be difficult to digest the appellant’s version of, after finding the wallet, deciding to take it to the university the next day.  The easier and obvious solution would be to ask those sitting in the vicinity of the wallet if it was theirs.  Further it would have been much more difficult for the appellant’s case to explain the missing $900.  But if as shown by the Octopus card produced by the appellant to the police, the appellant had travelled in the bus at a later time than PW1, i.e. after PW1 had alighted, then there is some strength to the appellant’s case that he, after he had found the wallet on the floor of the bus, had not associated it with any other person on the bus. 

12.It seems to me that there must be some strength to the appellant’s version of events, i.e. that he found the wallet, as he travelled from Kennedy Town to Causeway Bay, on the floor of the bus at a time which must have been after PW1 had alighted.  I accept that the magistrate, by his comment, set out above seemed to give less credit than was due to the appellant’s case as supported by the details on his Octopus card.  But I do not think that really matters.  As I say the prosecution case had always, or at least at an early stage of the trial, included an allegation of theft by finding, and the precise time of the finding was relatively unimportant.  As the magistrate said :

“… most importantly, as his Counsel properly concedes, even if the Deft was not travelling westwards at the time, the Deft had nevertheless picked up the wallet shortly after PW1 had lost it, and the precise time when it was picked up is not a crucial factor or an element of, nor essential to, the Charge.  The Prosecution could not know precisely when the Deft had picked up the wallet, and they are not required to prove this aspect. …”

13.So even accepting the arguments of Mr Lam on this 1^st ground, the ground itself does not determine the real issues in the case and is insufficient to sustain the appeal. 

Ground 2

14.The real issue was whether by keeping the wallet in his possession until 3:30 p.m. the following day and having by that time done nothing to return it to, or notify, its owner the appellant had evidenced an intention to appropriate it permanently. 

15.In this regard the magistrate said :

“… If he had truly wanted to hand the wallet to the HKU, he would have done so as soon as he woke up the next day.  But even on his own version of not waking up until noon, it was 3.5 hours later when he was still in Central and nowhere near the HKU.  Having picked up someone else’s wallet and decided to keep it, he had done nothing subsequently to make me feel he could possibly be honest. …”

16.The magistrate went on to point out that $900 cash was missing from the wallet.  The appellant’s case was that someone else must have handled the wallet before he did, either stealing it from PW1 or also finding it, rifled it and taking the cash and then in turn throwing the wallet on the floor. 

17.The facts certainly support some other person being involved in handling the wallet before the appellant found it.  That is because after PW1 lost the wallet he returned to the minibus when it was stationary at Bagiuo Villas and then thoroughly searched it when it was fully lit with its internal light.  He did not find the wallet.  At that time the only person on the bus, apart from the driver was a woman.  One would have thought a search, in good lighting, of a relatively empty bus would have located a reasonably bulky object such as a wallet, and one conclusion is that the wallet may have been in another person’s possession at that time, only subsequently being thrown onto the floor.  Whatever may have been the situation the appellant did not get onto the bus until 9:43 when it reached Kennedy Road.  There was ample opportunity for another person to have handled the wallet and taken the $900 before throwing it away prior to the appellant picking it up. 

18.However the appellant offered a completely discredited excuse as to why he was in Des Voeux Road at 3:30 p.m. on the day after he had found the wallet, with the wallet still in his possession.  He said he was on his way to a medical appointment.  It subsequently transpired that he had no medical appointment on that day.  The appointment was on another day.  The appellant said he was mistaken as to the date. 

19.On that basis the magistrate was right to reject the appellant’s evidence as being unreliable.  But the question as to the appellant’s intention to appropriate and permanently deprive regarding the wallet was still for the prosecution to prove beyond reasonable doubt. 

20.In the circumstances of this case it seems from the Octopus card provided by the appellant that his only minibus trip on the relevant day 9 May 2006 was at 9:43 p.m. from Kennedy Road to Causeway Bay (judging from the fare paid).  He therefore found the wallet relatively late at night, when he was going out.  I do not think it unusual he would not take it to a police station immediately rather than wait another day.  The real question : is whether his possession of the wallet still at 3:30 p.m. that next day is sufficient to allow the conclusion beyond reasonable doubt that he had by that time decided to keep the wallet. 

21.To be in Des Voeux Road Central at 3:30 p.m. the appellant had obviously left his house in Kennedy Town and travelled into the city.  He had taken the wallet with him.  Mr Lam says this fact assists the appellant, as a thief would not carry around an easily identifiable object such as the wallet and its contents.  Against that the appellant had come from his home into Central.  Ignoring his evidence about an urgent medical appointment, he had made no attempt to return the wallet to or contact Hong Kong University, or a police station in the several hours since he had woken up. 

22.Nevertheless in the whole of the circumstances I do not think that is sufficient to prove beyond reasonable doubt that the appellant had formed the intention to appropriate the wallet so as to permanently deprive the owner of it.  There is considerable suspicion attached to the appellant’s actions, or rather his inaction, in having done nothing to report his finding of the wallet by that time in the afternoon.  But in my view, particularly as at that time he was a person with a clear record and to be regarded as of lesser propensity to offend, the prosecution case did not quite reach the required standard of proof. 

23.The appeal is allowed on that basis and the appellant’s conviction is quashed and his sentence is set aside. 

Ms Teresa Kam, Ag SGC of the Department of Justice, for HKSAR

Mr Osmond Lam, instructed by  Messrs Tony Kan & Co., for the Appellant