David Mayo v. The Queen
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CACC000668/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 668 OF 1974 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 25th September, 1974. ----------------- JUDGMENT ----------------- 1. The appellant was convicted, after a trial, of theft and common assault and appeals against these convictions. I would say at the outset that Mr. Corrigan, for the Crown, did not seek to uphold the convictions and the appellant had the benefit, upon the appeal, of having counsel on both sides arguing urgently and cogently for him. 2. The charge arose out of an incident at Lockhart Road, Wanchai, which occurred at about 2 a.m. on 1st June 1974. At that time the appellant, together with another European, was examining watches displayed for sale at a stall. The only prosecution evidence concerning the actual alleged theft and assault, came from the stallholder but even if that evidence be considered in isolation it contains ambiguities in regard to the twin ingredients of "dishonesty" and "intention of permanently depriving". According to the stallholder the appellant took up a watch to look at it and picked up another without putting the first one down. His evidence went on:
The evidence went on to describe how he saw something in the appellant's right hand and could see the strap of a wrist-watch and how he tried to obtain the watch by putting his index finger through the strap. His evidence continued by saying that the appellant then started to run. At a later stage, however, he said that the appellant ran several steps and that he chased after the appellant and when he caught up with him discovered that the appellant was holding something in his hand. There is considerable ambiguity here as to when, if at all, the appellant started to run. The appellant denied running and it is a matter for comment that the 50-year-old stallholder was able to catch up with this 20-year-old man if the latter was indeed trying to abscond with the watch. 3. The learned magistrate, in his Statement of Findings, inferred that it was the appellant's intention to deprive the stallholder of the watch, from the alleged interchange between the two, that is the stallholder saying in Chinese "There is a watch missing" to which the appellant is said to have replied in English, "No". The learned magistrate made a finding that although the stallholder spoke to the appellant in Chinese the appellant understood what was said to him. This, with respect, is a very tenuous finding in that there is no evidence that the appellant understands Chinese. 4. Again the learned magistrate appeared to draw an inference from the fact that the appellant had only $130 upon him at the time, whereas his evidence was that he intended to buy two watches. The learned magistrate comments that he would have insufficient money to buy two watches but this comment cannot be supported since the stallholder's evidence was that the watch which the appellant had in his hand was priced at $30 and those having a calendar were priced at $60. Thus $130 would have sufficed to buy two of either type. 5. No doubt the stallholder had suspicions that the appellant intended to steal the watch but his evidence cannot be described as other than unsatisfactory and this was the evidence which formed the basis for the conviction. 6. It was the evidence of the appellant that there was considerable bargaining about the price of two watches and that he "kept on bargaining" so that by the end the stallholder became angry and a few people gathered around shouting. He says that the next thing he was aware of was a blow on the face and that some boys had hit him whereupon the stallholder grabbed hold of him and he oushed the stallholder away. Thus there was the inevitable conflict between the two stories but, as we have seen, even if that of the stallholder be considered in isolation his evidence is such that the conviction cannot be upheld. 7. Turning to the assault charge, the appellant admits pushing the stallholder away and said that this was after the stallholder had grabbed hold of him and he had been hit with sticks by by-standers who had been told by the stallholder that he was trying to steal a watch. There is every indication that violence was not a unilateral affair and the conviction upon this charge is also unsatisfactory. 8. Both convictions are quashed and the two $500 fines which the appellant has already paid must be repaid to him. There was also an order for payment to the stallholder of $100 compensation and this too has been paid. Upon my observing that any order for the return of the $100 would be likely to result in another fracas in Lockhart Road, the appellant volunteered to forego the $100 and I make no order in respect of that sum. Representation: Major J. Murray for appellant Corrigan, C.C., for respondent. |