The Queen v. Koo Tak Ming
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CACC000839/1983 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 839 OF 1983 BETWEEN : -
______ Coram: The Honourable Mr. Justice Jones in Court Hearing dates: 29th July, 8th December 1983 Date of delivery of judgment: 15th December 1983 Mr. Henry Litton, Q.C. and Mr. B. Yu (David Pyott) for Appellant Mr. G. Alderdice (Legal Department) for Respondent ______________ J U D G M E N T ______________ 1. I will now give my reserved reasons for allowing this appeal on the 8th December. The appellant appealed against his conviction for theft at the Western Magistracy on the 2nd June 1983. He was discharged conditionally on entering into a recognizance in the sum of $200 for a period of 6 months with no conviction recorded, and was ordered to pay costs of $1,000.00. On review the sentence was varied to an absolute discharge with no conviction record, but the order for costs remained. 2. The appellant is a single man aged 28 who lives with his parents and elder brother. At the time of the offence he was employed as an Information Assistant at Hong Kong University. He graduated from Hong Kong University in 1976 with a Bachelor of Arts degree with 1st class Honours. In 1981 whilst employed at the University he obtained his Master's degree in Philosophy. He has plans to complete a doctorate. 3. The appellant is a man of impeccable character. Several witnesses testified on his behalf to this effect at the trial. 4. The appellant was charged with the theft of a wallet which contained cash and other items on the 29th April 1953 inside the library on the 2nd floor of the University. Three students at the University gave evidence for the prosecution. PW1 Cheung Man-yau said that at about 6.00 p.m. on the 29th April after reading at a desk in the library he left to go to the toilet and to have his meal. He left his wallet behind. After a very short time he returned to witness the appellant struggling with LAW Wing-kin PW2. He saw his wallet on the floor near their feet and picked it up. 5. PW2 testified that he was browsing in the library when he saw the appellant pick up the wallet that was on PW1's desk. He chased after the appellant and a struggle ensued. After the struggle he saw the wallet on the floor. Neither PW1 nor PW2 saw the appellant holding the wallet. 6. PW3 WAI Chi-pang testified that he was working at a table on the left side of the entrance to the library when he saw the appellant walking to and fro. A short while later he witnessed the struggle and saw the appellant holding a wallet. In cross-examination PW3 indicated that at the time of the incident he was seated by some bookshelves on the right of the entrance. Quite clearly as was submitted by Mr. Litton who appeared for the appellant PW3 would not have been able to witness the struggle if he had been in this position. Indeed he may not have been present at the time of the incident. 7. The appellant gave evidence that ho went into the library to look for a book for a colleague. Although he saw the wallet on the floor near the staircase when he was about to leave the library he made no attempt to pick it up. In his findings the learned Magistrate described the students to be compelling witnesses who could not have been mistaken, and that there was no possibility that they had conspired together to incriminate the appellant. Indeed upon a perusal of the record the evidence appeared convincing. 8. When Mr. Litton appeared for the appellant on the 29th July he said that the appeal was unarguable, but requested an adjournment to make further investigations as he found the case to be disturbing. I granted the application which was supported by the Groom for the evidence did seem to be too good to be true having regard to the appellant's outstanding academic record and his previous good character. 9. At the hearing of the appeal fresh evidence was placed before the court in the form of an affirmation made by Mr. Chen Chung-yin the Assistant Librarian of the University to whom a report was made about the incident by the students in the presence of the appellant. The report reveals that PW1 had deliberately placed his wallet on the desk whilst PW2 arranged to keep the appellant under observation. Therefore PW1 was obviously not telling the truth when he denied in cross-examination that he had inadvertently left his wallet when he went to the toilet, and had not left it deliberately. PW2 was also lying when he testified that he was merely browsing in the library. 10. There is no doubt in the light of the additional evidence that the students did collaborate with each other to sot a trap for the appellant who was suspected to be the thief. This plan was conceived following a series of thefts that had occurred before the incident in the library of the University. Quite clearly the appellant would have been aquitted if the additional evidence had been before the learned Magistrate. 11. After the appellant was arrested the three students who gave evidence together with a fourth student prepared a poster which they signed and placed on a notice board at the University. The poster reads as follows:
However their conduct and enthusiasm resulted in the conviction of an innocent person. The conviction was therefore quashed, the sentence set aside and the costs were ordered to be remitted. 12. Having regard to the serious miscarriage of justice caused by the students I shall order that the papers be forwarded to the Attorney-General to consider whether any proceedings should be taken against them.
Representation: Mr. Henry Litton, Q.C. and Mr. B. Yu (David Pyott) for Appellant Mr. G. Alderdice (Legal Department) for Respondent | ||||||||||||||||||||||||||||||||||||||||||||