HKSAR v. Cheung Kan Yin, Vien

HCMA 513/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 513 OF 2011

(ON APPEAL FROM STCC 3147 OF 2010)

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 5 October 2012

Date of Judgment: 5 October 2012

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J U D G M E N T

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1.The Appellant, a woman of previous good character in her 30s, was convicted after trial in the Magistrates’ Court on a charge of theft. She now appeals against her conviction. At the material time she was employed by Unique Fashion Jewellery Ltd, a manufacturer of artificial ornaments, as its Sales Manager. The charge is that between 1 March and 10 May 2010, at Unique’s premises, she stole 803 artificial ornaments belonging to Unique.

2.If the prosecution witnesses’ evidence is accurate, that evidence suffices to prove beyond reasonable doubt that the Appellant stole those ornaments and confessed to the police that she had done so.  In her testimony, she disputed the confession relied upon by the prosecution.  On the general issue, her testimony involved protesting her innocence and alleging that she was being “framed”.  If the Magistrate thought that the Appellant’s testimony was or might be true, the Magistrate would of course have acquitted her.  But the Magistrate, having seen and heard all the witnesses, felt sure that the prosecution witnesses were to be believed and that the Appellant was not.

3.Five Amended Perfected Grounds of Appeal Against Conviction have been filed.

4.Ground 1 is that the Magistrate erred (i) in accepting the evidence of the police officers concerned when admitting into evidence the verbal admission and the post-recorded admission relied upon by the prosecution and disputed by the defence and (ii) in concluding that the verbal admission was made and made voluntarily and that the post‑recorded admission was made voluntarily.  In support of this ground, many points are taken.  They are all points on issues of fact.  Having considered them, I do not regard them as points which provide any proper basis for disturbing the Magistrate’s view of the admissibility of the admissions.  Ground 1 fails.

5.Ground 2 is that the Magistrate erred in accepting the evidence of the prosecution witnesses as credible and reliable without giving any reasons.  An examination of what the Magistrate said does not bear out this contention.  Ground 2 fails.

6.Ground 3 is that the Magistrate erred in accepting the evidence of one of the police officers, who gave evidence as PW2, on an incorrect basis.  The particulars of this good asset that the Magistrate accepted PW2’s evidence on the special issue and, because of this, automatically accepted PW2’s evidence on the general issue.  The record does not bear that out.  The Magistrate had to come to a decision on the special issue, and she did so.  Then the Magistrate had to come to a decision on the general issue, and she did so.  I do not see any basis that she, having come to her decision on the special issue, allowed it to deter or distract her from a proper approach to the general issue.  Ground 3 fails.

7.Ground 4 is that the Magistrate erred in not considering the Appellant’s version and PW2’s version of events.  Detailed particulars of this ground have been put forward.  I find nothing in this ground.  The Magistrate duly considered what had to be considered.  Ground 4 fails.

8.Ground 5 is that there was a material irregularity at the trial in that the Magistrate erred in finding that the prosecution had proved beyond a reasonable doubt that the verbal admission was made at the conclusion of the special issue and that this deprived the Appellant of a fair trial as the Magistrate had ruled on the special issue before the evidence for the general issue had been completely tendered.  I do not accept that.  The Magistrate showed herself aware of the difference between voluntaries and truth.  She did not pre-judge what she had to decide on the general issue.  Ground 5 fails.

9.I find no basis on which to disturb this conviction.  The appeal is dismissed.

Mr Li Kai-fung Kevin, instructed by Y K Lau & Chu, for the appellant

Ms Rosa Lo, of the Department of Justice, for the respondent