HKSAR v. Zhou Shu Ping

HCMA485/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 485 OF 2010

(ON APPEAL FROM TMCC 943 OF 2010)

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Before : Hon McMahon J in Court

Dates of Hearing : 15 July 2010

Date of Judgment : 15 July 2010

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J U D G M E N T

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1.The appellant was convicted after a trial before Mr Smout at Tuen Mun Magistracy of the theft of HK$8,000.  She was sentenced to 3 months’ imprisonment suspended for 12 months.  She now appeals her conviction. 

2.The prosecution case was that the appellant was a friend of the 1^st prosecution witness (“PW1”) who at the time of the present offence was serving a term of imprisonment for an offence of managing a vice establishment. 

3.The appellant had visited PW1 in prison and had been asked by him to deliver $8,000 to his mother to help with his brother’s medical expenses.  It was accepted by the appellant before me that PW1’s brother did in fact suffer from leukaemia.  In any event according to the prosecution the appellant took the money from PW1 but kept it for herself. 

4.The appellant gave evidence.  Her case was that PW1 and she had become lovers whilst he was managing the vice establishment and that he had given her the $8,000 to pay for her living expenses. 

5.The magistrate dismissed the appellant’s evidence as being of any weight.  He gave reasons for that findings in the followings terms :

“ I have to say that I do not believe the defendant’s testimony, it did not smack of the truth, and I am sure that she is not a witness of truth. In trying to make more credible PW1’s alleged gift of a substantial sum of money to her, the defendant described her relationship with PW1 as that of lovers, boyfriend and girlfriend. Yet, even on her own testimony, PW1 paid her for sex every time they had sex. …

Further, it is common ground, although the amount was in dispute, that at the time of the alleged gift, the defendant had already borrowed a substantial sum of money from PW1 on her evidence, the sum was again $8,000.  According to her, she owed him $8,000 as at the date he handed her a further sum of $8,000 as a generous gift to cover her and her child’s living expenses.  I do not believe her.  I reject her testimony, I have no doubt that she changed her mobile telephone number to avoid PW1’s attempts to recover the $8,000 he had handed to her on 28 August, she being fully aware that this had not been a gift of money to her.”

6.He accepted PW1’s evidence as being truthful in the following terms :

“… However, I do find that PW1’s testimony to be credible, I did not find it strange that he would trust the defendant to act as intermediary in giving the $8,000 to his mother. He and the defendant were friends and colleagues. She was a sociable person. He had had sex with her, though for money.

Also, I accept PW1’s explanation for not asking his mother to come directly to the prison to collect the money. His younger brother was very sick, suffering from leukaemia, and his mother was busy looking after him. I took into account PW1’s confusion in his testimony as to whether his mother was also present when the defendant visited him at the prison in August. Ultimately, PW1 testified that his mother was not there on that occasion, and that she came with the defendant later, shortly before he was released from prison.

I am sure that that is right, and that it is safe to rely on PW1’s testimony.  It was of course an admitted fact that PW1 did hand over $8,000 in prison on 28 August to the defendant. …”

7.The unrepresented appellant’s grounds are advanced in the terms of Form 101 to the Magistrates Ordinance to the effect that the evidence was insufficient to support her conviction.  Before me she argued that the evidence of PW1 was internally contradictory. 

8.I disagree.  The magistrate’s reasoning was sensible and to the point.  He in fact has dealt with the matters raised by the appellant before me today and I agree with his approach to those matters.  I am satisfied that his conclusions were correct.  I might add one further matter which supports PW1’s version of events is the improbability of PW1 providing $8,000 to a girlfriend for her (and her young daughters) living expenses only to later, “because their relationship had faded” according to the appellant in her recorded interview, go to the somewhat extreme length of reporting to the police that the money had been misappropriated by the appellant.  Nor does it make particular sense that PW1 would give the appellant $8,000 for her living expenses when his brother was suffering from leukaemia. 

9.It is never easy to decide cases where the evidence is effectively the word of one witness against another whether or not that other is the defendant at trial. 

10.However in the circumstances of this case the magistrate gave reasons which are compelling and with which I agree.  

11.The appeal is dismissed. 

Mr Thomas Law, SADPP of the Department of Justice, for HKSAR

The Appellant in person, present