HKSAR v. Bantsimba Andre

HCMA985/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 985 OF 2009

(ON APPEAL FROM TMCC 2855 OF 2009)

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BETWEEN

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Before : Hon Lunn J in Court

Date of Hearing : 4 March 2010

Date of Judgment : 4 March 2010

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J U D G M E N T

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1.The appellant appeared in person to appeal against his conviction on 12 November 2009 in Tuen Mun Magistracy by Mr Smout of the single charge of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. There is no appeal against the sentence of 12 months’ imprisonment imposed in consequence of that conviction.

2.The charge alleged that on 10 July 2009, on the pavement outside Coronet Court, 2 Hung Tai Road, Tin Shui Wai, Yuen Long, the appellant attempted to steal a red paper bag containing a case of facial powder, the property of Madam Chow King Man.

3.At the trial, the appellant was represented by counsel instructed by the Duty Lawyer Scheme.

4.The prosecution called Madam Chow and her husband who testified that after midnight the appellant had appeared at the right hand side of Madam Chow as she was walking together with her husband on the pavement. Madam Chow said that the appellant grabbed and then pulled at a bag containing cosmetics that she had hung over her right shoulder, and that he did so for three to five seconds. Her husband, Mr Chan confirmed that he had seen the appellant pulling at his wife’s bag. He intervened and pushed the appellant away and asked him what he was doing. He was unable to understand much of what the appellant said other than his reference to the word “money”. Madam Chow confirmed the appellant’s use of the word “money” and stated that he had pointed his finger at them during the conversation. Whilst the conversation took place Madam Chow positioned herself behind her husband and telephoned the police. Neither of them lost sight of the appellant in the period up and until the arrival of the police, about three to four minutes later.

5.PC5046 testified that he was one of the police officers who had arrived at the scene and that he had arrested and cautioned the appellant. WDPC7817 testified that she conducted a recorded interview of the appellant in the late afternoon and evening of 23 July 2009.

6.In the interview the appellant accepted that he was present at the scene with Madam Chow and her husband. As he walked past them, overtaking them as he did, Madam Chow stood behind her husband. The appellant said that he asked her “What’s wrong?”, her husband then pushed him away and said that the appellant was going to steal his wife’s bag. In face of the statement that Mr Chan was going to call the police, the appellant said he had told him “I am not afraid of the police because I do not have anything to reproach myself about.” He said that he had remained at that place, afraid that the couple would exaggerate matters against him if he left. He said that on the arrival of the police he had been assaulted. One of the police officers struck him a blow in the stomach whilst the other pushed him against a wall. He was handcuffed, kicked and fell onto his face. Then he was taken to the police station in Tin Shui Wai.

7.In response to the appellant’s complaint at the police station that when defecating he passed blood he was taken to the hospital. At hospital he was examined. He said that he was told by the doctor that he was suffering from hemorrhoids. However, he contended that the bleeding from his anus came from the blow to his stomach.

8.At trial, the appellant testified in his own defence. He said that he was an asylum seeker from the Democratic Republic of Congo, having arrived in Hong Kong in 2004. He lived in a small village in Tuen Mun area. That evening he was in the vicinity of the scene of the incident drinking cans of beer with friends. He walked past Madam Chow and her husband on the way to purchase something from a Wellcome Supermarket. He said that he was about a metre away from her. He denied having touched Madam Chow or the bag she was carrying.

9.I now turn to the magistrate’s findings. The magistrate noted that Madam Chow had said that at the time the appellant grasped hold of the bag he was standing in front of her, whereas Mr Chan said that the appellant was at her side. The magistrate said that he regarded this as a minor discrepancy which did not cast doubt on their credibility. He said that he found them to have testified honestly and accepted that the appellant had grasped hold of the bag hanging over Madam Chow’ arm as he passed by. Further, he accepted that the appellant had pointed a finger at the couple and spoken fiercely, mentioning in English the word “money”. The magistrate determined that it was the appellant’s intention to take away the bag held by Madam Chow and its contents, and the steps that the appellant had taken were more than preparatory to the commission of the offence. He found that it was the appellant’s intention to deprive Madam Chow permanently of it and his appropriation was dishonest. In consequence, the magistrate found the appellant guilty of the offence.

10.I turn next to the grounds of appeal against conviction. In support of the appellant’s appeal against conviction, the appellant relied on four pages of handwritten grounds of appeal. Amongst the many points that he sought to make, two were more easily identified as legal points. First, he suggested that there were inconsistencies and irreconcilable discrepancies between the accounts of the prosecution witnesses, but in his written grounds he did not give any details as that that. However, in his oral address to the court he complained about specific matters. Secondly, he pointed to the absence of corroborative evidence of the prosecution witnesses such as CCTV firm or independent eye‑witnesses in particular to support the alleged victim’s accounts. In effect, he suggested that in consequence his conviction was unsafe and unsatisfactory.

11.In the other grounds the appellant questioned how it was that the magistrate tested the veracity of the prosecution witnesses. He asserted that the magistrate was biased against him and he repeated his allegations that the police had beaten him up.

12.In the appellant’s oral address to the court he made the point that in the Brief Facts presented to the magistrate, which described the circumstances supporting the prosecution case, reference was made to the fact that a “strong smell of alcohol” was discerned by the police officers who arrested the appellant. He pointed out in evidence that PC5046 had said simply that the appellant “smell a little bit of alcohol”.

13.Of more significance, was his assertion that at the time of the incident the appellant was holding a bag of tomatoes in one hand and a mobile phone in the other. Of that, the appellant posed the rhetorical question “How could I have grasped her bag?” However, in face of questions from the court the appellant accepted that he had not given that testimony in his evidence. The appellant explained that omission by saying that he had no time to do so and he was not asked the relevant question. Again, in face of questions from the court, he said that he had mentioned that matter in his record of interview. Whilst it was true that in the first answer the appellant gave in his record of interview he mentioned that he had brought tomatoes and beer at some stage prior to the incident, there was no reference in the record of interview of him holding a mobile telephone. When he was invited by this court to confirm that fact he simply declined to answer although he had been provided by the court with a copy of the record of interview in French and Chinese characters.

14.I am satisfied that there was no significance whatsoever in the difference of the degree of the level of alcohol smelt about the appellant’s presence by the police officers at the time of his arrest.

15.As Miss Sheroy Tam pointed out in her helpful written submissions for the respondent, the magistrate specifically addressed the issue of the discrepancies between the accounts of husband and wife as to the position the appellant occupied at the time he grasped Madam Chow’s bag. Similarly, the absence of corroborative evidence was a matter on which the magistrate was addressed specifically by the appellant’s counsel at trial. As Miss Tam submitted, this was a matter for the magistrate to resolve in his analysis of the evidence as described in the Brief Facts on the one hand and the police officers on the other hand.

16.As was pointed out to the appellant, in any event the Brief Facts was not a statement of the witness who gave evidence. Three police officers dealt with the appellant in his arrest at the scene. Similarly, there was no merit in the point he made now in this court about him holding items in his hands which would have prevented him from grabbing the bag. The appellant was represented by counsel at trial and the matter was not canvassed in his evidence nor in cross-examination of the witnesses. Furthermore, although in his record of interview there was a mention of the purchase at some earlier stage of tomatoes he made no such assertion in that interview of being encumbered in that way at the time of the incident and therefore unable to grasp the bag. It beggared believed that an issue of such relevance would not have been raised by the appellant either in the record of interview or at the trial, if it were the fact.

17.In the result, I am satisfied that there is no merit in any of the grounds of appeal against conviction advanced in support of the appellant’s appeal. Accordingly, the appeal is dismissed.

Miss Sheroy Tam, SPP of Department of Justice, for HKSAR

The Appellant in person, present