HKSAR v. Lee Yip Kei

HCMA248/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 248 OF 2008

(ON APPEAL FROM TWCC 2943 OF 2007)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 27 August 2008

Date of Judgment : 19 September 2008

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J U D G M E N T

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Introduction

1.On 25 February 2008 after a trial before Mr J.T. Glass, magistrate, the appellant was convicted of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, Laws of Hong Kong.  On 10 March 2008 he was sentenced to be imprisoned for nine months.  On that day he was granted bail pending his appeal against his conviction. 

2.In the lower court he was represented by Mr William Allan of counsel as he is in this appeal.  

3.On 27 August 2008 I heard his appeal against conviction and reserved my decision.  This is my judgment. 

4.The particulars of the charge alleged that :

“Lee Yip Kei you are charged that on the 26^th day of September 2007 at ‘3’ mobile shop, Shop No. 147, 1/Floor, Maritime Square, 33 Tsing King Road, Tsing Yi, New Territories in Hong Kong, you did steal one P.D.A. mobile phone the property of Leung Chung Kuen.”

The evidence

5.Leung Chung Kuen (“PW1”) was a computer technician.  He said that on 26 September 2007, he was inside the “3” mobile phone shop (“the shop”) on the 1^st floor of Maritime Square in Tsing Yi.  He was alerted to the fact that someone was moving behind him.  This caused him to check to see if his mobile phone was still in his rucksack.  It was not and he then challenged a person who was pushing passed him. 

6.He said : “Was that you who took away my mobile phone?”  That person then took a mobile phone (PW1’s as it transpired) out of his trouser pocket and let it slide to the floor.  Realizing that it was his mobile phone, PW1 told this person not to leave.  In response, that man pushed PW1 aside and hurriedly fled from the shop.  PW1 shouted after this man as he fled.  That person, he said, was aged around 30, in a yellow T-shirt and wearing shorts.  His height, he estimated to be five feet seven or eight inches, and he had very short hair and was wearing spectacles. 

7.PW1 said that the actual time he was able to observe the face of that man when they were inside the shop was very short. 

8.As the thief fled the shop a security guard from Maritime Square arrived on the scene and set off in pursuit.  PW1, upon seeing this, picked up his mobile phone from the floor and also gave chase.  He saw that the security guard had apprehended a man nearby.  The distance from the shop to where the man was detained was more than 100 metres.  That man was the appellant. 

9.PW2 was the security guard on duty that evening on the 1^st floor of Maritime Square.  The security guard counter where he was located was about 20 feet from the shop.  He was apparently alerted to the fact that there was an incident in the shop by the sound of people shouting.  Such was the level of noise that he ran in that direction.  As he did so, he saw a man ‘in yellow clothes” running out of and away from the shop.  He said that that man was 5’9” tall, with spectacles and short hair, wearing a yellow T-shirt and jeans.  PW2 entered the shop and was obviously told that there was an allegation of theft.  He then immediately left and gave chase to the person he had earlier seen running out of the shop. 

10.After a short chase, he apprehended a man.  That man was the appellant.  He requested assistance from his control room and this was provided.  In due course PW1 also arrived at the location where the appellant had been detained. 

11.He said the time that he had been inside the mobile phone shop before giving chase to the man he had earlier seen running away from it was about two seconds.  Having resumed the chase of that person, he did not thereafter lose sight of him. 

12.The issue for determination in the trial was whether or not the person who, PW1 said, had his mobile phone in his pocket which he produced when challenged was the same person who fled the shop and was apprehended by PW2.  The appellant made no admissions when detained by the security guard and later when arrested by the police.  He did not give evidence in the trial. 

13.The magistrate did not rely upon the visual identification of the facial features of the appellant.  In the case of PW1, he was not satisfied that he could safely consider this evidence.  PW2 gave no evidence of identification by reference to facial features.  There were apparently no identification parades conducted.  There was no identification in court.  PW1 and PW2 described a course of events commencing with the attempt to steal PW1’s mobile phone and concluding with the apprehension of the appellant.  The magistrate was acutely aware of the fact that it was for the prosecution to satisfy him, so that he was sure, that the person who fled the mobile phone shop was the same person apprehended by PW2 a short time later. 

Discrepancies

14.There were discrepancies in the evidence of PW1 and PW2.  These were in the main part, minor and understandable.  There were also important consistencies.  For example, both described the man in question as follows :

“PW1 around 30, in a yellow T-Shirt at about 5’7” — 5’8” tall very short hair and wearing spectacles. 

PW2 around 30s in a yellow T-Shirt about 5’8”— 5’9” tall short hair and wearing speculates.” 

15.PW1 said that the man brushed him aside and then ran away from the entrance of the shop.  He said “… he ran out and I chased after him”.  Later he used the expression “walking at a quick pace”.  PW2 for his part said that when he was alerted to the fact that there was an incident at the shop, he ran towards it from his security counter which was about 20 feet away.  When he was halfway there he saw a man in yellow clothes running out of the shop.  Once this man came out of the shop he quickened his pace.  After making brief enquiries with the staff of the shop he chased after this man, calling out to him as he went.  In cross-examination he said that this man was running as soon as he exited the shop doorway. 

16.These were not major discrepancies, and given the sequential nature of the evidence of the two witnesses they do not cast doubt upon the integrity of their respective evidence.  PW1 set the scene in a sense for the evidence of PW2.  The man who stole PW1’s mobile phone exited the mobile phone shop and broke into a run.  PW2 saw a man running out of the mobile phone shop, when told that that person was suspected of theft he gave chase and apprehended him. 

17.The only significant discrepancy in the witnesses’ evidence was that PW1 recalled that the thief wore shorts whereas PW2 said the man he chased wore jeans.  It appears that the appellant when apprehended was wearing jeans. 

The appeal

18.On behalf of the appellant, Mr William Allan of counsel has caused to be filed seven perfected grounds of appeal.  These are supported by 27 pages of written submissions and a list of 16 authorities. 

19.Ground 1 reads :

“1.    The Learned Trial Magistrate failed and/on omitted to give himself an/or direct himself properly or at all and/or erred in law when dealing in his Learned ‘Reasons for Verdict’ with the crucial question of the identity of the culprit in question.  In particular, the Learned Trial Magistrate erred in law and/or failed or omitted in his Reasons for Verdict to:

a.)  Warn himself properly or at all on the special need for caution and remind himself of the possibility that a mistaken witness can be a convincing one and that both PW1 and PW2 could have been mistaken.

b.)  Direct himself properly or at all as to fact that this was clearly a case of a fleeting glance of a person unknown to PW1. …

c.)   Deal with properly or at all with the inconsistencies and discrepancies in relation to PW1 and PW2’s testimony as to the sequence of events, time and numbers of persons at the scene where the APPELLANT had apparently been stopped, the material discrepancy between the description given by PW1 as to clothing stating the culprit had been wearing shorts whereas PW2 stated the person he saw running and the person he stopped was wearing jeans. …

d.)  The fact there was no independent corroborating evidence, that is no incriminating items were found on the Defendant, the fact that PW2 never witnessed the actual incriminating events that is, the throwing of the phone onto the floor by the culprit and that the phone had come from the pocket of the culprit when confronted by PW1 as described by PW1 and that PW2 never actually spoke to PW1 inside the mobile phone shop. …

e.)  Never reminded himself properly or at all and/or in a fair and balanced way in his ‘Reasons’ of the specific weaknesses which had appeared in the identification evidence.

f.)   The fact that despite it was possible there were other eye witnesses to the events none had been called as witnesses of fact by the prosecution. …

g.)  The possibility that the shop had CCTV and the fact again there was no evidence of any such video evidence to corroborate PW1’s evidence. …

h.)  The fact the Defendant was never actually identified in court nor at a properly conducted I.D. parade as being the culprit. …

20.As to 1(a) and (b).  In paragraph 8 of the magistrate’s Reasons for Verdict he said :

“Identity was a serious issue in this case and I reminded myself of the ‘Turnbull’ directions when considering the quality and circumstances under which each identification had taken place.  I reminded myself that an honest witness could be mistaken and that a group of witnesses could be mistaken.  I refused a dock identification and there was therefore no direct evidence that the defendant was the culprit.  I did not rely at any stage upon the facial identification by both PW1 and PW2 as accurate as they were very short sightings.”

Nothing more was required.  The issues in the trial centred not on visual identification of facial features but whether or not PW1 and PW2 were describing the same person. 

21.As to 1(c), there were no significant discrepancies as to material matters.  The magistrate considered that the evidence of PW1 that the thief wore shorts and PW2 that the person he saw running from the shop wore jeans was a material inconsistency and attempted to reconcile this by speculating on matters not in evidence.  This he should not have done.  However this discrepancy did not undermine the significance of PW1’s evidence.  What was critical in the evidence of PW1 was the fact that the thief, when challenged, dropped his mobile phone on the floor and fled just as PW2 arrived on the scene.  Whether PW1 was in error in his recollection of whether or not the thief wore shorts or not, did not alter the fact that this person — in yellow, with short hair and spectacles between 5’7” to 5’9” tall ran from the mobile phone shop.  PW1’s evidence of identification went no further than this.  It was PW1’s evidence that the person who stole his mobile telephone when confronted dropped the phone to the floor, pushed PW1 aside and attempted to flee from the shop.  PW2 alerted by the commotion saw a person fleeing the shop and it was this person that he subsequently apprehended albeit for a period of some two seconds he had lost sight of him.  Both PW1 and 2 described this person in similar terms.  There was no suggestion that any other person of similar description was seen to be running from the scene.  What was critical was the nexus between the culprit fleeing the shop and being thereafter apprehended.  PW1’s imperfect recollection of whether or not this person wore shorts or jeans was not the critical issue.  His evidence set the scene for the fact that the thief fled the mobile phone shop.  PW2 detained a person he had seen fleeing the mobile phone shop. 

22.As to  1(d), apart from being unintelligible the particulars of this grounds are irrelevant.  None of the matters referred to therein needed be addressed by the magistrate.  The evidence of PW1 and PW2 was in sequence.  There was no evidence that PW2 had spoken to PW1.  His evidence was that he was inside the shop for only two seconds.  

23.As to  1(e), the magistrate was fully alert to the need for care and directed himself accordingly. 

24.As to  1(f), this is wholly speculative as is 1(g) and 1(h).  The magistrate had to determine whether or not the prosecution case was proved on the evidence before him.  The magistrate, in upholding the appellant’s counsel’s objection refused to allow, a “dock identification”. 

25.Ground 2 reads :

“2.   The Learned Trial Magistrate erred in law in that he wrongly allowed and/or appeared to have placed great weight and or reliance on the evidence of PW2 who allegedly caught the culprit and the fact that PW2 as stated in his evidence in chief had to ask PW1 whether the person in yellow clothes was the person who ‘stole’ the mobile phone.  Such a statement being ambiguous and/or unclear as to identification that PW2 had caught the right person.  Such an identification thereby amounting to identification by confrontation when there were according to PW2 at last two other security guards and at least 3 three police officers present and the Defendant was already under detention/arrest.  In such circumstances, such an identification was tainted, highly prejudicial, unfair, and based upon the hearsay evidence of PW2.  In such circumstances the Defendant was a suspect under the custody of Police officers there by suggesting he was a police prisoner and PW2 in circumstances clearly asking a suggestive question of PW1 whether the person he caught was the person who committed the crime.  In these circumstances the identification of the defendant could have carried little or no weight.”

26.The ground of appeal is untenable.  The transcript of the evidence of PW2 reveals that in response to a question from the prosecutor, he said :

“After the police had arrived the person who was suspected to have his mobile phone stolen also arrived.  I saw him earlier at 3 mobile shop.  After he arrived I asked him whether it was the person in yellow clothes who had stolen his phone.”

27.Mr Allan in the court below objected to the admissibility of this evidence.  That objection was upheld by the magistrate.  The matter was not then revisited in evidence or in the magistrate’s findings.  It is clear that he took no account of this conversation, yet he could quite properly have done so.  The balance of the particulars of this ground of appeal are therefore meaningless.  There was no evidence of identification arising out of this exchange.  The magistrate confined the use of the evidence of PW1 to the events which took place inside the shop and the general description of the person who fled. 

28.Ground 3 reads as follows :

“3.   In his ‘Reasons for Verdict’ the Learned Trial Magistrate failed and/or omitted in his ‘Reasons’ to properly identify what evidence he adjudged to be capable of supporting the evidence of identification.”

29.As before this ground of appeal is untenable.  There was no “identification” in the proper sense.  There was the apprehension of a person alleged to have committed an offence based upon the observations of two witnesses as to the movements of the alleged culprit.  There was no independent evidence capable of supporting the evidence of PW1 and PW2.  None therefore could be led let alone need be identified.  There was no need beyond the warnings given above for the magistrate to direct himself further. 

30.Ground 4 reads as follows :

“4.   The Learned Trial magistrate is his ‘Reasons for Verdict’ handed down shortly after hearing final submission failed to giver himself any adequate direction or any or any proper direction on the essential elements of the defence case failing to cover and/or state properly or at all in his ‘Reasons’ the main elements of the defence and essentially highlighting the prosecution case without considering properly or at all the legal and factorial elements of the Defence case.  This was wrong in particular since the Learned Magistrate appeared to accept that this was a case of a fleeting glance by both PW1 and PW2 and the need to look for corroborative evidence.”

31.This ground of appeal is also untenable.  The magistrate accepted that the visual identification by PW1 was a “fleeting glimpse”.  That is why he refused to act upon that evidence.  He ignored it.  He was fully alert to the defence case that the person apprehended by PW2 was not or may not have been the one PW1 said stole his mobile telephone. 

32.Ground 5 reads as follows :

“5.   The Learned trial Magistrate wrongly commented on and or there was a material irregularity in the Learned Magistrate wrongly expressed a view during Defence Counsel’s closing submissions that the Court indicating to Defence Counsel during submissions that he ought to address the issue of irresistible inferences to be drawn from the facts asserted by the prosecution there by giving an indication the Learned Magistrate had formed a view on the evidence prior to verdict and which as a result in effect Reversed the burden of proof upon the Defence when at all times the burden rested upon the Prosecution, and gave the appearance that Justice was not being seen to be done.”

33.This ground of appeal is without merit.  The magistrate was (unsuccessfully and it transpires) attempting to assist counsel by focusing his attention on the real issues in the trial.  The suggestion here made that the magistrate had pre-judged the evidence and reversed the burden of proof is without merit.  The magistrate indicated at the outset that the outcome of the case would not be determined by the identification evidence given by PW1 — that evidence, was the magistrate made clear, insufficient.  PW2 for his part gave no evidence of like nature.  His evidence was confined to the chase. 

34.Ground 7 reads as follows :

“7.   The Learned Magistrate failed and or omitted and or erred in law in that having stated the clothing of the culprit could be supportive of the identification did not in is his ‘Reasons for Verdict’ make it clear and or failed and or omitted to warn himself properly or at all in his Reasons of the fact that someone although dressed in a particular manner did not preclude the possibility that someone else may have been dressed similarly; especially as there was in this case a clear discrepancy between PW1 and PW2 as to whether the culprit was wearing shorts or jeans.”

35.Paragraph 15 of the magistrate’s Reasons for Verdict reads as follows :

“I considered whether a reasonable inference could be drawn from all the evidence that there was another male who had the same description and yellow T-shirt, who had left the shop in the same hurried manner and at the same time that PW1 and PW2 each saw a male leave the 3 shop.  In other words did PW1 and PW2 see different males with similar features behaving similarly at about the same time?  I rejected such an inference could be reasonably be drawn and I did not believe such a situation had occurred.”

36.In paragraph 16 he said :

“I also considered whether a reasonable inference could be drawn from all the evidence that during the short period whilst PW2 lost sight of the male there could have been another male with the same colour T-shirt and same general description running in the same direction as the male PW2 had seen leaving the shop, and this other male was only 15-20 feet from the 3 shop and was running to avoid apprehension until stopped when PW2 had seen him and set off after him.  I rejected such an inference could be reasonably be drawn and I did not believe such a situation had occurred.”

37.This ground of appeal ignores the above passages which are a clear and unequivocal answer to the complaint made. 

38.Ground 6 reads as follows :

“6.   The Learned Trial Magistrate erroneously failed to consider properly or at all the fact there was no evidence whatsoever that PW1 spoke with PW2 in the ‘3’ telephone shop therefore there was no evidence that PW1 passed on any description to PW2 of the culprit and where both witnesses were relying upon fleeting glances of the thief in a shopping mall with many people.”

39.This ground of appeal is meaningless.  Neither PW1 nor PW2 was asked whether they spoke to one another inside the shop.  Given that it was PW2 evidence that he was inside the shop for about two seconds and spoke to a staff member, this is not surprising. 

40.Ground 7 alleges that this conviction is unsafe and unsatisfactory.  It is nothing of the sort. 

41.The appeal is dismissed. 

Mr Prakash L. Daryanani, SPP of Department of Justice, for HKSAR

Mr William Allan, instructed by Messrs Litterwoods, for the Appellant