HKSAR v. Dian Pramana Putra

HCMA 149/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL CASE NO. 149 of 2013

(on appeal from KCCC No. 4878 of 2012)

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J U D G M E N T

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Background

1.The appellant faced two charges, namely, theft (Charge 1) and assaulting a police officer (Charge 2). He pleaded not guilty and was tried before magistrate Mr Peter Law.

2.After trial, he was convicted of Charge 1 and acquitted of Charge 2.  For Charge 1, he was sentenced to 14 months’ imprisonment.

3.He now appeals against conviction.

Prosecution case

4.At the trial, the victim of Charge 1, Mr Wong Kwok-wai (PW1) gave evidence.  He was on the upper deck of a bus, sitting alone by the window of a two-seater seat.  He placed his briefcase (which was not zipped) and a red plastic bag on the aisle seat to his left.  Soon later, when PW1 was looking in the direction of the window, he felt something touching his left upper arm.  He immediately turned to his left and saw the appellant leaning forward from behind.  The appellant’s head was above the back of the seat and PW1 looked the appellant in the eye.  PW1 saw that the appellant had put his hand into his briefcase and was holding his wallet that was inside his briefcase.  PW1 asked the appellant what he was doing.  The appellant released his hold on the wallet and the wallet dropped onto PW1’s thigh.  PW1 asked him why he had stolen his wallet.  The appellant repeatedly said “No” and “Nothing”.  PW1 then went downstairs and made a complaint to the bus driver.  The appellant followed him and repeatedly apologized to him.  The matter was reported to the police who later arrived.

Defence case

5.The appellant testified.  He said that he was sitting one row behind PW1.  He claimed that he was sleeping at the material time.  He said that his head was on his arms that were rested on the back of the seat in front of him.  He claimed that he had been woken up by PW1 when he accused him of theft.  He denied the offence and he showed PW1 his hands in order to show that he had not touched PW1’s personal items.

Magistrate’s findings

6.The magistrate said he was impressed by PW1 as an honest and reliable witness and he accepted his evidence.

7.On the other hand, he did not accept the appellant’s evidence as truthful or reliable.  He said that based on what the appellant said about how he had rested his arms on the back of the seat, it was impossible that the appellant could have touched PW1’s briefcase (and the wallet therein) accidentally.  He also said that he did not believe that PW1 would fabricate a case against the appellant; in particular, he pointed out that the appellant was a total stranger to PW1 and there was no evidence of any grudges between the two.  He also pointed out that there were other passengers on board the bus who might have seen or videoed what had happened and it would be impossible that PW1 would make up a story against the appellant.

8.He said that he was satisfied that the appellant, in taking the wallet away from PW1’s briefcase, had committed the offence of theft.

Grounds of appeal

9.It is stated in the Notice of Appeal (Form 101) that the appellant has lodged an appeal against conviction due to the insufficiency of evidence.  In particular, he states that (1) there was no witness, no video-recorded evidence or fingerprint evidence against him; and (2) if he was seen holding anything in his hand, why his hand was not caught immediately?

10.Before me, the appellant repeats his story before the magistrate in length.  He emphasises that he was sleeping and sitting in the seat behind PW1, and it was impossible for him to reach his hand into PW1’s briefcase to get the wallet.  Anyway, it was also impossible for him to know that there was a wallet since there were some books covering the wallet inside the briefcase.  He says there was no reason why the magistrate believed PW1 and not him.  Another point he stresses is that there were no other witness apart from PW1 to give evidence against him, and therefore there was insufficient evidence to ground the conviction.

Respondent’s submissions

11.Ms Fan, for the respondent, has provided a written submission to the court.  She submits that this is a case which depends on the credibility of the prosecution witness (PW1) and the appellant.

12.It is clear that the magistrate had considered the versions of events given by both of them in detail.  Having considered all the circumstances, the magistrate found that PW1 was an honest and reliable witness and accepted his evidence.  On the other hand, he found that the appellant’s version implausible and disbelieved his evidence.  He also gave adequate reasons for disbelieving the appellant’s assertions of framing up and accidental touch. 

13.The magistrate had thoroughly considered the evidence given for both parties and did not err in making the relevant findings.  His decision was made after due consideration and analysis.  The offence in question was proved beyond reasonable doubt.  There is nothing that renders the conviction unsafe or unsatisfactory.  There was also no material irregularity or any irregularity in the conduct of the trial.

14.There is no merit in the appellant’s appeal against conviction and the appeal should be dismissed. 

My view

15.I entirely agree with the respondent’s submissions.

16.I only wish to point out that the grounds of appeal commenting or complaining on the lack of video-recorded evidence or fingerprint evidence or the appellant’s hand holding the wallet not being grabbed or seized immediately are indeed suggestions as to how the evidence of this case, and perhaps even in other similar cases, could be improved.  Notwithstanding, the evidence against the appellant in the present case is strong enough and does enable a case of guilt to be established beyond a reasonable doubt against him.  The magistrate did not commit any mistake either in law or in fact.  I find nothing in the proceedings that renders the conviction unsafe or unsatisfactory.  Indeed, I find nothing in the decision or in the procedure below that can be criticised.

17.A couple of other matters should be mentioned.  The trial below was conducted in Chinese and the proceedings were translated to the appellant in Indonesian through an interpreter.  No complaint from the appellant has been recorded.  The appellant now explains that time was too tight for him to request the trial to be conducted in English.  For this appeal, however, the appellant has written a letter dated 12 March 2013 to the Registrar of the High Court, requesting the hearing of the appeal to be conducted in English and “my interpreter must be male and with good understanding of English Language.  I also request for the PW1 the witness for prosecution must hear my Appeal Hearing in the Court.”

18.First, I consider that the request for the appeal to be conducted in a language different from that used for the proceedings in the lower court unreasonable.  While certain amount of leeway may be given to the parties (and especially an accused) to choose either of the two official languages for the hearing of court proceedings, the change of language from first instance to appeal causes some inconvenience in that some translation of the documents or proceedings might become necessary, which is evident from counsel’s submissions in English while the magistrate’s statement of findings is in Chinese.  Secondly, this may give rise to a false impression that certain benefit might be obtained from a court using one and not the other of the languages.  This should not be encouraged.  Thirdly, it may also give rise to another false impression that the accused was not allowed to use the language he wanted in the lower court, unnecessarily raising suspicion on the fairness of the court. 

19.There is no explanation why a male interpreter is requested.  The appellant can rest assured that the quality of interpretation with the court’s interpreters is unquestionable, male or female.  He retracts this request by telling me that it was a mistake.

20.The other of his request is that PW1 “must hear” his appeal in court.  He says that he wants to have PW1 being confronted by him because PW1 had told a lie while he himself had not.  This is a ridiculous suggestion that does not help the appellant’s appeal at all.  It has not been acceded to.

21.The appeal is dismissed.

Ms Irene Fan, Senior Public Prosecutor, for HKSAR

Appellant, in person