HKSAR v. Wong King Sun

HCMA 646/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 646 OF 2014

(ON APPEAL FROM KCCC 1791 OF 2014)

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JUDGMENT
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1.The appellant was convicted after trial by a magistrate[1] of an offence of theft contrary to s 9 of the Theft Ordinance Cap 210. He was sentenced to 12 months’ imprisonment. He now appeals against his conviction.

Findings by the magistrate

2.The theft related to a pickpocketing incident on 15  May  2014. The magistrate was satisfied beyond a reasonable doubt that the appellant had stolen a brown card holder (the purse) containing an octopus card and its plastic holder by taking it away from the victim’s rucksack she was carrying on her back. 

3.The theft occurred at about 3:35 pm inside a woman’s shoe shop at Nam Cheong Street.  At that time a plain clothes police officer, PW2, saw the appellant remove the purse from the victim, PW1’s rucksack, immediately thereafter the appellant left the shop with the purse.  PW1 then followed the appellant into the street and alerted his teammates in the vicinity on the beat console about the incident. 

4.After a short distance of trailing the appellant PW2 then saw his colleague PW3 and pointed out the appellant to him.  PW3 acknowledged to PW2 that the appellant was the one being pointed out and followed him.  Upon confirmation from PW3 that he was following the appellant PW2 returned to the shop to locate the victim. 

5.When PW3 was following the appellant he saw the appellant discard the purse and a plastic cover onto the ground.  PW3 picked them up and continued to follow the appellant.  PW3 arrested the appellant and found an octopus card on him.  

6.Upon returning to the shop PW2 was unable to see the victim as the shop was crowded with people.  He called out to the customers in the shop asking if they had lost anything.  PW1 presented herself to him. 

7.PW1’s purse containing the octopus card and its plastic holder was inside the right side pouch of her rucksack.  The purse was fastened to the rucksack by a string.  At one end of the string was a buckle, this buckle was connected to the purse.  While shopping inside the shop she heard the police officer ask the people in the shop if anyone had lost anything.  She noticed that the string attached to her rucksack was hanging down and her purse was missing. She reported to the police officer, PW2. 

8.PW1 was later shown the purse, the octopus card and its plastic holder that the appellant had in his possession, she identified those items as her property. 

9.The magistrate found the police officers and the victim to be truthful and reliable witnesses. 

The defence case

10.The appellant elected not to give evidence or to call any defence witnesses.  The defence case made apparent from cross-examination of the prosecution witnesses was that he had found and picked up the purse containing the octopus card and its plastic holder on the ground at a different location away from the shop.  The appellant never entered the woman’s shoe shop.  The appellant was eventually arrested some distance away from the location of the shop.

Ground of appeal

11.Mr David Boyton counsel at the trial before the magistrate and for the appellant at this hearing, relied on one ground of appeal.  The sole ground was that the magistrate had failed to identify and resolve a significant discrepancy between the prosecution witnesses’ evidence rendering the conviction unsafe and unsatisfactory. 

12.It was submitted by Mr Boyton that this significant discrepancy in the evidence went to the heart of the defence.  The discrepancies were so material that the benefit of the doubt should have been given to the appellant.  The discrepancies showed that the appellant could have picked up the purse from outside of the shop.

13.Mr Boyton accepted that on the appellant’s case, the appellant was nevertheless guilty of theft by finding of the victim’s property. 

The discrepancies of the prosecution witnesses

14.The prosecution called three witnesses.  The owner of the property and two police officers.  Mr Boyton submitted that the material discrepancy in the evidence related to the number of police officers present at the shop after the alleged pickpocketing.  The discrepancies were as follows :

(i) PW1 said there were several, three or four officers including PW2,

(ii) PW2 said it was just himself and

(iii) PW3 said that there were two, himself and PW2.

Discussion

15.The magistrate carefully assessed the prosecution witnesses’ evidence and the defence case.  She did not find the discrepancy of the number of police officers material or so serious as to cause her to doubt the credibility of the prosecution witnesses. 

16.She said at para 20 of the statement of findings :-

“In any event, I do not find the discrepancy of the number of police officers material or one so serious to cause me to doubt their credibility. In HKSAR v. Kan Brian Ping Chee, FAMC 64/2012, (paragraph 9) Mr. Justice Chan PJ stated that ‘Whether a discrepancy in a witness’ evidence is a significant discrepancy must be considered in the circumstances of the case, having regard, in particular, to the effect and importance the discrepancy may have in relation to the issues to be determined in the case and the witness’ evidence as a whole.’”

17.The issue in the present case was whether the police officer PW2 had observed the appellant take the purse from the victim’s rucksack.  On the defence case PW2 was framing the appellant by saying he did so when it was the defence case that he had picked the purse up from the ground away from the shop.

18.The evidence established that there was one or more police officers at different times.  PW2 was the only police officer at the shop when he witnessed the appellant remove the purse from the rucksack.  His teammates were in the vicinity at that time.  PW3 materialised only after PW2 asked for assistance on the beat console after he witnessed the pickpocketing by the appellant.  PW2 and PW3 followed the appellant together but thereafter PW3 alone followed the appellant. PW2 returned to the shop to locate the victim alone.  The victim said after she identified herself to PW2 she saw more than one police officer at the shop. 

19.The magistrate was correct to say that the discrepancies in the number of police officers were not significant in the circumstances of this case.  The discrepancies were immaterial.  Whether there were one or more officers at the shop after the pickpocketing did not detract from the credibility of the core account of PW2 and the victim.  PW2 witnessed the appellant taking the purse from PW1’s rucksack.  The victim did not know her purse was missing from her rucksack until the officer made enquiries to the crowd at the shop.  PW1’s confirmation to PW2 that her purse was missing supports the credibility of PW2.  

20.The magistrate carefully assessed the credibility of the witnesses in light of the submissions made by Mr Boyton which were the same as advanced at this appeal.  The witnesses’ evidence was not undermined by the discrepancies in the number of police officers.  The magistrate was entitled to find the prosecution witnesses’ to be honest and reliable. 

Conclusion

21.The conviction of the appellant was neither unsafe nor unsatisfactory.  The appeal against conviction is dismissed.

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

Mr David Boyton, instructed by Littlewoods, for the appellant