HKSAR v. Cheng Kwan Peter

HCMA913/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 913 OF 2009

(ON APPEAL FROM ESCC 4440 OF 2009)

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Before : Hon McMahon J in Court

Date of Hearing : 15 December 2009

Date of Judgment : 15 December 2009

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J U D G M E N T

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1.The appellant was convicted after trial in Eastern Magistracy of two offences of making off without payment, contrary to section 18C of the Theft Ordinance, Cap. 210.  He was sentenced to 2 months’ imprisonment in respect of the 1^st offence and to 3 months’ imprisonment in respect of the 2^nd offence.  Both sentences were ordered to be served consecutively; that arrived at a total of 5 months’ imprisonment. 

2.He now appeals against his conviction only so far as the 1^st offence is concerned, and against sentence only so far as the 2^nd offence is concerned.  

3.The prosecution case was that on 22 August 2009 the appellant and another person, who was his co-accused at trial, had entered the Foo Lam Restaurant in the Shun Tak Centre and ordered dim sum.  They ate their meal and then left without paying.  PW1 was the waitress who had served them and they had left an impression upon her, as one of them had ordered a dim sum to take away but they had eaten also in the restaurant. 

4.When the appellant and the other person returned to the restaurant 8 days later on 30 August, PW1 recognised them.  On this occasion also the appellant and the other person ordered a meal each in addition to takeaway food and then left without paying.  Both the appellant and his co-accused were intercepted as they left the restaurant and were subsequently arrested and charged with the present offences. 

The 1^st offence

5.It is only in respect of this offence that the appellant who was unrepresented both at trial and before me appeals his conviction.  He argues that the evidence against him in respect of this offence was insufficiently reliable. 

6.The prosecution case depended upon the evidence of identification provided by PW1.  She said in her evidence that on 22 August, because of the strange order for takeaway dim sum in addition to other food which was eaten by the appellant and his co-accused in the restaurant, and the amount of time they had been there, coupled with the fact that she later realised they had left without paying, she was able to immediately recognise both the appellant and his co-accused when they returned to the restaurant on 30 August and she then took steps to prevent them leaving without paying on this occasion.  

7.The appellant says PW1’s evidence cannot be relied upon.  But the magistrate had this to say :

“    I found PW1 to be an honest and believable witness and I accept what she says.  She gives a very clear account of what had occurred on the 22.8.2009 and I believe her.  She was not mistaken as to her identification of the appellant.  This was because of the way the order was made, which is unusual, and has been referred to.  For take away the usual price is paid, which is much higher then the price to eat dim sum at the tables.  This identification is further re-inforced by the fact that some eight days later, the appellant together with the same other person, at the same time had again entered her restaurant and had ordered dim sum.  She was on guard and recognized them immediately, as they were the same persons who had not paid for their meal on 22.8.2009, and it caused her to have to make up the shortfall.  She was as she said ‘100% sure’ and I believe her.  …”

8.The magistrate was in the best position to assess the creditability of PW1 and the reasons he gave for accepting her evidence are cogent. 

9.The appellant did not give evidence, but when he had been arrested and cautioned in respect of the 1^st offence he had claimed to have been at a library when the offence was committed.  His alibi in that regard was checked by police who were able to obtain the CCTV recording of the particular library so as to determine whether the appellant had entered it as he claimed on 22 August.  The CCTV recording showed he had not; in so far as the appellant did not appear on the recording. 

10.The magistrate accepted PW1’s evidence, rejected the appellant’s alibi and convicted the appellant of the offence.  In my view he was right to do so and the appellant’s appeal against conviction in respect of this 1^st offence must fail.  

The 2^nd offence

11.The appellant appeals only his sentence in respect of this offence.  The food ordered by the appellant on this occasion was worth about $240.  The appellant has a criminal record of some nine theft offences and one robbery offence since 1991.  He has other convictions which do not relate to dishonesty.  

12.The magistrate in sentencing took into account the fact of the appellant having committed the previous offence in the same restaurant only 8 days earlier.  He did not, but in my view was also entitled to, regard the appellant’s other previous convictions for petty theft as an aggravating factor. 

13.In my judgment the appellant cannot complain about the enhancement of sentence.  Nor can he complain in principle that the sentences were ordered to run consecutively.  Each offence was separate and distinct from the other.  In principle the magistrate was entitled to order the sentences to be served wholly consecutively. 

14.So far as totality is concerned however, I think 5 months’ imprisonment a little high for the obtaining of the two meals, the total value of which was around $400 odd.  

15.Accordingly, I order that the sentences imposed on both charges remain as they are, but that the sentences be served concurrently to the extent of 1 month.  That is a totality of sentence of 4 months’ imprisonment.  

Mr Simon Tso, SPP of the Department of Justice, for HKSAR

The Appellant in person, present