HKSAR v. Rashid Zafar Ghori

HCMA 535/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 535 OF 2014

(ON APPEAL FROM TMCC 515 OF 2014)

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R E A S O N S   F O R   J U D G M E N T
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1.The appellant was convicted after trial of a single offence of burglary by Mr Michael Chan, a Deputy Magistrate sitting at Tuen Mun Magistrate’s Court. He was sentenced to 18 months imprisonment. The appellant appeals only against his conviction. The sole ground of appeal being the standard assertion that the conviction was against the weight of evidence or that certain evidence was improperly admitted or rejected, or that there was no evidence, or no sufficient evidence whereon to found the said conviction (or as the case may be) and that he was not guilty of the offence. The appellant appearing in person provided no perfected grounds of appeal and I make no criticism of that.

2.The prosecution case accepted by the learned magistrate as gleaned from his rather short and superficial Statement of Findings was as follows.  PW1 owned a grocery store at Ng Lau Road, Tuen Mun.  At about 10:15 am on 15 February 2014, he was in the dining room of his premises next to his store where he both lived and worked.  He saw the appellant who at that time had been his tenant for some two months enter his store.  The door was closed but not locked.  Upon seeing this, PW1 immediately went into his store and found the money, the subject of the charge missing from the drawer.  He then intercepted and confronted the appellant.  Together they entered the appellant’s home where PW1 asked the appellant why he took his money and if he returned it, he would not call the police.  The appellant denied the offence, so he called the police.  PW1 said he had previously withdrawn $1,000 in $20 notes from the bank.  $900 tied with an elastic band was left and taken.  Also four red packets each containing $20 were also stolen.  He said police later arrived and found the money under a chair which was actually a sofa in the appellant’s premises.  PW2 was a police officer.  He said when he arrived, PW1 and the appellant were outside the premises quarrelling.  They all went into the appellant’s home where he found the $900 comprising $20 notes and four red packets each containing a $10 note under a sofa in the common living area.  Arrested and cautioned, the appellant said “No, I didn’t take the money” He took the appellant to the police station and on the way he continued to deny taking the money.  The appellant elected not to give evidence but called his wife who could give no relevant evidence.

3.Rightly in these circumstances, the magistrate found identification not to be an issue.

The appeal

4.The appellant being unrepresented found it difficult to frame any meaningful and persuasive challenge to the magistrate’s findings and hence the conviction. His representations amounted to a bare assertion that PW1 was unreliable and the magistrate was wrong to accept his evidence.  This was based on a claim by the appellant that he had been PW1’s tenant for six months but PW1 said it was two months.  This claim by the appellant was not in evidence, unsupported and, in my opinion, even if correct of little importance to any facts found.

Ruling on the appeal

5.Whilst I reiterate that the learned magistrate’s Statement of Findings is not as comprehensive as one would have hoped it to be, he did cover all points necessary to base a conviction on.  He was alive to the fact that PW1’s evidence did contain some points of mistake and confusion.  These he acknowledged in paragraph 7 of the Statement of Findings.  He went on to deal with his resolution and reconciliation of these problems and the facts he found proved in paragraph 8.  Therefore, I am firmly of the opinion that the magistrate’s findings of fact on all points that the prosecution had to prove beyond all reasonable doubt was proper and correct.  Nothing has been raised to cast doubt on the findings. 

Accordingly, I dismiss the appeal.

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

The appellant appeared in person