HKSAR v. Subasinghe Mudiyaneselage Nandika Piyal

HCMA 357/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 357 OF 2012

(ON APPEAL FROM FLCC 149/2012)

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Before: Deputy High Court Judge Wright in Court

Date of Hearing: 16 January 2013

Date of Judgment: 29 January 2013

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J U D G M E N T

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1.The Appellant, a 32 year old Sri Lankan male, was convicted after trial by a Deputy Magistrate on 27 April 2012 of a single charge of theft, contrary to s. 9 of the Theft Ordinance, Cap. 210, committed on 9 December 2011 in Ta Kwu Ling, New Territories. He was sentenced to undergo imprisonment for a period of 7 days, which sentence was suspended for 12 months. He appeals both conviction and sentence.

2.The appellant has no record of any previous criminal convictions in Hong Kong. He is the holder of that what is commonly referred to as a "Form 8 recognisance", he being a "torture claimant".

3.The Particulars of Offence appearing in the charge sheet asserted:

“…you are charged that on the 9^th day of December 2011 at an open space next to an electricity supply pole S/N: 070748-OB-01, Tai Po Tin, Hung Lung Hang, Ta Kwu Ling, New Territories, in Hong Kong, you did steal one block of 6 pieces copper heat sink wrapped by adhesive tape, the property of an unknown person.”

4.There were two sets of facts agreed between the prosecution and defence. Apart from their exhibit numbers the difference between them is to be found in paragraph 4 of the later document: that records that the appellant had voluntarily participated in an interview on 26 December 2011 and that the record produced as a prosecution exhibit is an accurate record of that interview. The admitted facts detailed the place where the appellant had been intercepted by the police which is as described in the Particulars of Offence. They further recorded that the copper heatsink, wrapped by adhesive tape, (the item) was found in the basket of the bicycle ridden by the appellant and that the owner of the item is unknown.

5.Only one witness was called by the prosecution, the police officer who intercepted, questioned and arrested the appellant. The appellant elected not to give evidence. In respect of this, the magistrate observed that it "... will not render any adverse inference drawn to the Defendant and the Defendant will not be caused any prejudice on that." It is pertinent, in view of the stance taken on behalf of the appellant, to recall that, whilst that is the correct approach, the Court of Final Appeal,  per Bokhary PJ, in HKSAR v LI Defan & Another [2002] 5 HKCFAR 320 observed:

“In the present case, we are concerned with a trial in the District Court and therefore trial by a judge alone. The appellants, as was their right, chose not to enter the witness box. On my reading of the trial judge 's reasons for verdict, the substance of his approach involved really no more than treating the prosecution's evidence as enjoying the advantage - for it must be an advantage - of not being undermined, contradicted or explained by any testimony from the appellants. That is unexceptionable on any view of the applicable principles.”

6.The tenor of the case advanced on behalf of the appellant at trial was that the item had been picked up by the appellant in the same general area where he had been intercepted; that it either, as a matter of fact, had been abandoned and thus was incapable of being stolen or, in the alternative, the appellant believed it so to have been.

7.The magistrate appreciated the nature of the defence being run, saying at paragraph 15 of his Statement of Findings:

"The legal principle of the abandoned property is that in which the property has been abandoned. (sic) It cannot be stolen. If the property had not been abandoned but the defendant believed that it was, it had, (sic) he cannot be convicted of theft whether his belief was reasonable or unreasonable."

8.The magistrate set out the evidence, made a finding that the police officer was a truthful and reliable witness and accepted his evidence as "... basis of the fact-finding.". He then considered the question of abandonment and "... decided that [the item] was not an abandoned property itself...". Thereafter he considered the state of the appellant’s belief in regard to the ownership of the item and concluded that he "... did not think the Defendant’s belief was genuine." It has to be recognised that the magistrate’s mode of expression when analysing the evidence and recording his findings and conclusions lacked clarity and precision.

9.This may have contributed, but only in a minor way, to the fact that there were advanced no fewer than 15 grounds of appeal against conviction and five grounds of appeal against sentence. I see no necessity to burden this judgment by unnecessarily setting out each of those grounds.

10.Those grounds, including those which were factually incorrect, comprised a list of criticisms of the magistrate rather than being directed to persuading, or assisting, this court in arriving at the decision which it is required to make. The appeal process is not assisted merely by the recitation of a litany of perceived errors by the magistrate which it is thought will end with the axiomatic result of a reversal of the magistrate's decision.

11.Those grounds of appeal, and the 27 page written submissions in support of them, pay no regard to the now well-established principle that an appeal from a magistrate is “…a rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so… Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed…” (per Bokhary PJ in HKSAR v CHOU Shih Bin (2005) 8 HKCFAR 70)

12.I gratefully adopt the descriptions of the differing natures of appeals from the Court of First Instance and District Court to the Court of Appeal and those from the magistracy to this court analysed by McWalters J in HKSAR v IP Chin Kei & Ors [2012] 4 HKLRD 383, thus:

“21.  The difference in the nature of an appeal in the strict sense, appeal by way of rehearing and appeal by hearing de novo extends to the way in which each appeal is determined.

22.  The simplest is the hearing de novo as that is a retrial and so being a retrial the first trial magistrate’s Statement of Findings is irrelevant.  Of course as in any trial, live evidence is called, findings of fact are made, credibility of witnesses determined and issues of law resolved, all culminating in a determination of the guilt or innocence of the defendant; except this time these trial duties are performed by an appellate tribunal.

23.  In an appeal conducted by way of rehearing the process is the same except that in place of live evidence the appeal is conducted on the transcript and as a result of this and other limitations inherent in the rehearing process there are constraints on the appellate court in respect of the discharge of its duties to make findings of fact and determinations in respect of the credibility of witnesses. ... Another feature of an appeal by way of rehearing that distinguishes it from an appeal by way of hearing de novo is that the appellate court is permitted to have regard to the magistrate’s Statement of Findings.  One of the uses to which the appeal court will put the Statement of Findings is to inform itself of what determinations the magistrate made in respect of the credibility of witnesses and why the magistrate made these determinations.  Such a use helps the appeal court to lessen the impact of the disadvantage it faces from having to conduct the appeal only on the transcript.

24.  The duties that are performed on an appeal by way of a hearing de novo and an appeal by way of rehearing are very much trial duties and are quite different from the duties performed by an appellate court hearing an appeal in the strict sense.  An appeal in the strict sense requires that an error be demonstrated before the appellate court can act.  The appeal court, acting as a court of error, is not concerned with whether it agrees with the trial judge’s findings, even less with whether it would have made those same findings.  It cannot substitute what it would have found for what the trial judge found unless and only unless it has been demonstrated to it that the trial judge erred.”

13.I would further adopt the observation of McMahon J in HKSAR v SHERLOCK, Kevin Patrick HCMA73/2009 in regard to the current role played by a magistrate’s statement of findings:

“7.  ... it may well be that given that... appeals from magistrates’ convictions are dealt with by the Court of First Instance as re-hearings, grounds of appeal now serve little more purpose than to alert the appellate court and of course the respondent as to the areas of evidence or the aspects of the case which the appellant says were wrongly dealt with or analysed by the magistrate and which are particularly relevant to the re‑hearing on appeal.

8.  In regard to the re‑hearing the appellate court is at large and must come to its own finding of fact, giving weight to the reality that the magistrate’s assessment of the credibility of witnesses was made with the benefit of seeing and hearing those witnesses in person.”

THE APPEAL AGAINST CONVICTION

The evidence

14.I have available to me a transcript of the full evidence of the sole witness, PC 7720, as well as a transcript of the submissions made to the magistrate and his brief reasons for verdict and sentence. Subject to the issue of credibility, I am in as good a position to decide this matter as was the magistrate. In regard to credibility, the magistrate, as noted above, found PC 7720 to be a truthful and reliable witness, describing his evidence as "... straightforward and logical..." with no alterations "... during the long cross-examination by Mr. Sutherland.". He accepted that evidence as the basis for his fact-finding exercise. His finding on credibility is one of the areas criticized.

15.It will be helpful for the testimony of PC 7720 during his evidence in chief to be summarised at this stage. It was, indeed, straightforward. He was a passenger in a patrolling police vehicle accompanied by two of his colleagues. The appellant was observed to be riding a bicycle along a dirt road a little after 6:30 PM in early December 2011. It of course would have been dusk if not entirely dark by that time. PC 7720 testified that the light was "sufficient" although he agreed, in cross-examination, that there were no street lights there. He said that after the appellant had been seen they had followed him in the police vehicle; its siren had been sounded; the appellant looked back at the police vehicle; he pedalled faster; when the police van caught up with him the appellant abandoned his bicycle and fled. PC 7720 alighted and chased him. He stopped the appellant after approximately 15 metres.

16.He revealed his identity to the appellant, took him back to where the bicycle had been abandoned and asked him to produce his proof of identity. The appellant did not reply but took out a "Form 8" to establish his identity. He described the appellant, at this stage, as being “…in a panic, shivering”. He asked, in English, the appellant's name. The appellant did not reply. PC 7720 inspected the bicycle. In a basket on the front of the bicycle he found a pair of sunglasses, a water bottle, a rice bowl, a pair of gloves and a brown canvas bag in which he found the copper heatsink which was wrapped with adhesive tape.

17.He asked the appellant, in English, where he had obtained the item. The appellant did not reply. He repeated his question to the appellant, pointing at the item. The appellant again did not reply. For a third time PC 7720 asked the appellant where he had obtained the item. On this occasion the appellant did reply saying "Over here", pointing to the electricity supply pole in the vicinity of where the appellant had first been seen on his bicycle. They went over there. When they arrived at that area the appellant repeated "Over here". PC 7720 described the location as being a “mud road”: there was no refuse collection point nearby. He asked the appellant why he had taken possession of the item. The appellant did not reply.

18.PC 7720’s testimony continued that at around 7:10 PM that day he arrested the appellant for the offence of theft. He did so because the item was "... rather new and unlike (sic) to be picked up, and he did not have a reasonable explanation for that.". He and one colleague remained with the appellant in the police van whilst the most senior officer went to make enquiries in two nearby businesses as to whether they had any interest in the item: those enquiries proved negative.

19.The magistrate’s finding of credibility was attacked by Mr. Sutherland, counsel for the appellant, during the trial and again during this appeal. Although it is possible for an appellate court to diverge from a finding of credibility by a trial court it will only do so where that finding was plainly wrong. This is not such case. On the contrary, from a reading of the transcript, both of the evidence itself and the criticisms of it advanced to the magistrate, and the criticisms made during this appeal, it is self-evident that the events leading up to and at the time of the appellant's arrest were neither complex nor confusing. It would have been remarkable had the magistrate not accepted the police officer’s evidence.

20.The attack on the magistrate's finding of credibility relates primarily to one portion of the evidence of PC 7720, being whether PC 7720 contradicted himself about the appellant overtaking the police vehicle on his bicycle. The argument went that the magistrate paid insufficient attention to this supposed contradiction; that he should have found that it rendered PC 7720’s entire evidence unreliable. There were other matters, too, raised in cross-examination to which reference may usefully be made.

21.When he was cross-examined, PC 7720 reiterated that the police van had been travelling at approximately 10 km an hour but, when the appellant pedalled faster, it accelerated to 20 km an hour to get abreast of him. PC 7720 was asked whether the appellant had overtaken the police van: he replied in the affirmative. When this was pursued the witness was asked whether the appellant went past the van on one side and then in front of it: the witness agreed with that summary.

22.A substantial period of time was then spent on this issue with propositions being put to PC 7720 to the effect that in order to overtake the police van the appellant must have been travelling faster than it; that as the van had been travelling at 20 km/h the appellant must have been cycling at a speed in excess of that. It was suggested to PC 7720 that the appellant had not accelerated his bicycle at any time and also that the police van did not need to accelerate at all: the witness disagreed with each of these propositions.

23.It is quite clear that there was a misapprehension as to the effect of the witness’s evidence. Fortunately, this was appreciated by the prosecutor who clarified the position in re-examination. From the questions she asked she established that the appellant had ridden out from a small path on the left-hand side of the police vehicle; had “gone past the police vehicle” and then travelled ahead of it; accelerated only after passing the police vehicle. It is quite plain from any sensible and balanced understanding of the testimony that it was that act of emerging from the left and passing the police vehicle to get ahead of it which the witness characterised as "overtaking" the police van when cross-examined. This is reinforced by the witness’s evidence that the appellant had only accelerated after "passing the police vehicle" and it was only after the bicycle accelerated that the van, in turn, accelerated. I am satisfied that, in truth, there was no contradiction in the evidence of PC 7720.

24.Two further areas of the evidence of PC 7720 also attracted lengthy cross-examination and criticism. First, PC 7720 accepted that his suspicions were aroused by the conduct of the applicant when he pedalled faster after the sounding of the police vehicle siren. It was suggested to the witness that the fact that his suspicions had been aroused by that conduct was sufficient to trigger the operation of Rule II of the Rules and Directions for the Questioning of Suspects and Taking Statements which requires that:

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence.”

25.This was an entirely unrealistic proposition. It is self-evident such conduct by the appellant would arouse suspicion of a police officer. Whether those suspicions would turn out to be, as in this case, well-founded required investigation. Rule II does not prohibit investigation in order to establish reasonable grounds for suspecting that an offence has been committed. To accept such a proposition would be seriously to impede proper and necessary investigation and the gathering of evidence.

26.It is also worth noting, whilst on this particular aspect of the evidence, that the magistrate was criticised for taking into account the behaviour of the appellant when he saw the police van or heard its siren. It was submitted that "There could be other reasons for the appellant's reaction..." which the magistrate did not explore. That was an unrealistic submission which should not have been advanced. There was simply no evidence whatsoever of the existence of "other reasons". It is not the function of the magistrate to speculate or theorize.

27.Second, PC 7720 was cross-examined about why he had spoken to the appellant in English when he could see that he was ethnically South Asian. The witness was asked to confirm that he knew of a rule - which was not identified by counsel - that, when dealing with persons whose foreign ethnicity is self-evident and may indicate a language barrier, steps must be taken to arrange an interpreter. The witness agreed with that proposition but denied that he had breached that Rule in the present circumstances.

28.This cross-examination should be seen in the light of cross-examination by Mr Sutherland immediately preceding it which dealt with the request by PC 7720 to the appellant to produce his identification document, which the appellant did. The exchange went:

Q.   ... And the defendant appeared to understand your English, correct?

A.   Right.

29.PC 7720 agreed that it would have been better if he had had available to him a Sinhalese interpreter but explained that he had not arranged one "... due to the constraint of that environment". These events occurred in the early evening in what was described on behalf of the appellant as, effectively, being in the middle of nowhere. The witness’s reply attracted what can only be described as a sarcastic comment disguised as a question which was followed by the fanciful suggestion that he could have made a telephone call to summons such an interpreter. The witness reiterated that, at the scene, he could communicate with the appellant in simple English - a fact elicited, as has been seen, by the appellant’s own counsel.

30.It appears from the record that there was some doubt in the mind of both counsel and the magistrate as to the purpose of the cross-examination,  whether it was intended as an attack on admissibility or on the weight to be attached to the answer. It is to be noted that it was never challenged that the answer had been given by the appellant. What renders it even more difficult to comprehend why this cross-examination was thought appropriate is that what the appellant said underlies the defence being run on his behalf. With respect to the magistrate, he, in any event, should have stopped this unrealistic line of questioning so soon as it began.

31.There is no valid basis for criticising the magistrate’s finding that PC 7720 was a truthful and reliable witness or his reliance on the witness’s testimony for the purpose of making his findings of fact. I accept the magistrate’s finding of credibility.

The issue of abandonment

32.The magistrate examined the item. He came to the conclusion, which similarly was criticised, that:

“17. ... it was new and did not carry any dust or mud. It was wrapped by adhesive tape. I also found that it was very heavy and shape in colour.(sic) I find the only reasonable and irresistible inference to be drawn is that [Exhibit] P2 must be of some value.”

33.That criticism, too, was misguided. The magistrate is expected, just as is this court, to have regard to the exhibits before it. It is plain when looking at the item that it is unused and in clean condition. It is the product of a manufacturing process, not just a lump of metal. It is securely wrapped. That does not amount to speculation, but is simply the application of commonsense applied to straightforward observation. Of equal commonsense is the fact that a substantial mass, several kilograms, of metal of this nature has a tangible value - not least to scrap metal merchants. I would not speculate as to what that value might be but the nature of the item and its obvious tangible value satisfies me that it would not have been abandoned. Lost or inadvertently dropped, perhaps, but not abandoned.

34.PC 7720 was cross-examined as to whether it was "quite possible" that the applicant could have cleaned the item before putting it in the bag. Sensibly, because he had not seen the appellant come into possession of the item, PC 7720 accepted that that was a possibility but qualified his answer by saying that the item was "brand-new" and that because the location indicated by the appellant was a "mud road" it would have had some marks or mud on it. It was submitted on appeal that this answer by PC 7720 raised the possibility that the appellant indeed had cleaned the item. It does no such thing. There is not a shred of evidence to support it. If, indeed, that had occurred the fact of it would have been peculiarly within the knowledge of the appellant: if he chooses to exercise his right not to testify, he can hardly complain if there is no evidential foundation to support a wholly speculative submission.

Did the appellant believe, reasonably or otherwise, the item to be abandoned?

35.That leaves the question of the state of mind of the appellant. The only evidence of that comes from the appellant's replies to PC 7720 at the scene and the later interview. Although he did not say so in terms, for the magistrate to have rejected the appellant's claim that he believed the item to have been abandoned must mean that he rejected what the appellant said.

36.The appellant's answers to PC 7720 and during the interview have been referred to as the appellant's explanation. Of course, he is entitled to point those and say to the court that he relies on the answers he then gave. Whether the court places weight on those assertions is quite another matter. A court is entitled to attach less weight to an exculpatory statement or exculpatory parts of mixed statements, for they were not made on oath, have not been repeated on oath and have not been tested by cross-examination.

37.Whilst, obviously, a court is required to examine all of the evidence which is placed before it, it is of equal importance that, at the end of the day, it stands back and looks at the evidence as a whole - what colloquially may be referred to as "the big picture". Significant features in this matter include the conduct of the appellant upon becoming aware of the presence of the police vehicle; he abandoned his bicycle and fled on foot; he was panicky and shaking when apprehended; he was able to communicate after apprehension with PC 7720 in English; he had to be asked three times before he claimed to have obtained the item nearby; he did not respond to a question as to the purpose of his being in possession of the item; in the course of being interviewed several weeks later he claimed, for the first time, that he thought the item to have been abandoned and asserted that he had been taking it home to see whether there may be any use for it.

38.Two further factors are, first, that it will be remembered that when the appellant was first seen he was already riding his bicycle with the item in the basket yet claimed to have picked up the item there and, second, the condition and nature of the item itself.

39.I place no weight on those assertions made by the appellant. It follows that I find that the appellant did not hold the belief, whether reasonable or otherwise, that the copper heatsink had been abandoned.

Conclusion

40.In the light of the foregoing and particularly the matters set out in §§37 and 38 above, I am satisfied that the irresistible inference to be drawn is that the appellant had dishonestly appropriated the copper heatsink, which was the property of another, albeit unknown, person and that he did so with the intention of permanently depriving that other of it.

41.The appeal against conviction is dismissed. The conviction is confirmed.

THE APPEAL AGAINST SENTENCE

42.Five grounds of appeal against sentence are advanced, in the alternative. It is necessary only to say that those which assert that the magistrate "disregarded" the fact that the appellant was of clear record and "failed to take into account" the special circumstances of the appellant are without foundation: the magistrate specifically notes in §22, the second paragraph of his Statement of Findings relating to sentence, that the appellant is of clear record and in §§23 and 25 deals with the appellant's "special background" and status.

43.In the ordinary course of events, the most likely penalty for this type of offence for a person of previous clear record would be the imposition of a fine. The appellant and his family survive on food allowances and other handouts. He is unable to pay a fine, so that was not an avenue open to the magistrate and is not to me.

44.Experience suggests that he would not be accepted to perform Community Service.

45.I have been asked to consider obtaining a report to ascertain whether he would be suitable for probation supervision. The appellant is 32 years old, married and the father of two-year-old boy. Like him, his wife is also a torture claimant. I am not persuaded that the appellant is in  need of probation supervision.

46.One option which the magistrate appears not to have considered is the imposition of a conditional discharge pursuant to the provisions of s. 36(1)(b) of the Magistrate's Ordinance, Cap. 227. Such a course achieves the same effect as a suspended sentence in many ways, especially by providing an incentive to the appellant not to reoffend but without the necessity of imposing a period of imprisonment at this stage.

47.The appeal against sentence is allowed. For the suspended period of imprisonment there is imposed an order that the appellant is to enter into a recognisance in the sum of $1000.00 to abstain from committing any criminal offence involving dishonesty and to appear for sentence when called upon at any time within a period of two years from the date of this order.

Mr Frederick CHUNG, SPP of Department of Justice, for the Respondent

Mr Mark Sutherland, instructed by Department of Legal Aid, for the appellant