HKSAR v. Lau Chun Pong

HCMA 633/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 633 OF 2013

(ON APPEAL FROM KCCC 2373/2013)

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JUDGMENT
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1.The Appellant was jointly charged with another person, Kwok, with one charge of Theft. The two of them appeared in the Kowloon City Magistrates’ Court. Whilst Kwok pleaded guilty, the Appellant pleaded not guilty. After trial, he was found guilty by a Deputy Magistrate (hereinafter called the Magistrate). He now appeals against the conviction.

PROSECUTION CASE

2.The Appellant was alleged to have stolen an Apple i-Phone 4 mobile phone in a McDonald Restaurant. He did so by picking up the phone which the owner left on a table and giving it to his girl friend, Kwok.

3.To prove its case, the Prosecution called the owner of the mobile phone (PW1), a manager of the Restaurant (PW2) and a police officer (PW3). The Prosecution also produced two written records of interview the production of which was not challenged[1] as well as CCTV footage of the material time[2] and 25 photographs developed from it[3]. The first written record is a post record of what the Appellant said upon arrest.

4.The following facts were not in dispute. PW1 and his brother initially took a seat at a table, which was described as the Middle Table, which located at a corridor leading to the toilets in the Restaurant. They then moved to a table near the entrance and during the move PW1 left behind his mobile phone on the table. PW1 later realized this when he was still inside the Restaurant. When he went to his original table, the Middle Table, the mobile phone was no longer there. He made a report to the restaurant management. With the assistance of PW2, he reviewed the CCTV footage and found a man picked up his phone. CCTV footage also reviewed that this man had prior to his picking up the phone purchased food with Octopus. As a result of further investigation, the Appellant was identified as the man. He was arrested. The Appellant made statements voluntarily under caution, both upon arrest and in a subsequent interview.

5.The content of the CCTV footage, the relevant part of which was viewed by me together with Counsel, is summarized at paragraph 82 below.

DEFENCE CASE

6.The Appellant exercised his rights and testified in the trial. The crust of his testimony is that he believed the phone was that of Kwok. This was indeed what he said upon arrest. In gist, the testimony of the Appellant is as follows. He noticed the phone unattended on the table. He picked it up because Kwok also used mobile phone of the same brand and she had bad habit of leaving her personal belongings behind. At that time, he thought Kwok might have passed by the corridor for the toilet and left her phone on the table. He therefore picked up the phone and produced it to Kwok. He asked her if the phone belonged to her. She answered yes and put the phone inside her handbag. In the light of the response of Kwok, he believed the phone belonged to her. Had Kwok answered him that it did not belong to her, he would have handed it over to the restaurant staff.

FINDINGS OF THE MAGISTRATE

7.The Magistrate said there was little dispute with the Prosecution case, the main issue was whether the Appellant had the mens rea to steal.

8.He found that all the prosecution witnesses were witnesses of truth and accepted their evidence.

9.Apart from finding as facts what stated in paragraph 4 above, the Magistrate also made the following findings.[4] The Appellant and Kwok had known each other for years. They were boyfriend and girlfriend. On the evening in question, they went to the Restaurant. The Appellant bought food and the two of them sat at a table near the entrance, which was described as the Entrance Table. Then the Appellant left the table for the toilet. When he came out from the toilet, he saw the mobile phone on the Middle Table where PW1 had sat before. At that time, there was nobody sitting at the Middle Table. The Appellant picked up the mobile phone and returned to the Entrance Table. He produced the mobile phone to Kwok. After they had some exchange of words, he gave the mobile phone to Kwok who then put it inside her handbag. After that they left the Restaurant together. The Appellant and Kwok had never sat at any of the three tables where the Middle Table was located.

10.At this juncture, it may be convenient to mention that contrary to the finding of the Magistrate, as reviewed by the CCTV footage, the Appellant did not give the mobile phone to Kwok, instead he put it into his own bag and then the two of them left together at once.

11.The Magistrate rejected the explanation which the Appellant gave both in box and during the interviews.

12.Further he drew the inference that the Appellant and Kwok both knew full well at the material times that the phone belonged to a third person and that they shared a common intention of permanently depriving the owner of it. He found that by their actions they had jointly appropriated the phone belonging to PW1 and both of them were dishonest.[5]

13.He found all the elements of the offence of Theft were proved against the Appellant. Accordingly, he found him guilty of the offence.

GROUNDS OF APPEAL

14.The Appellant was represented by Mr Andrew Bruce, SC, appearing together with Mr David Khosa.[6] The following grounds of appeal were advanced :

(1) The Magistrate erred in drawing the inference against the Appellant that he had a common design with his girlfriend to steal the subject phone.

(2) The Magistrate erred in rejecting the explanations offered by the Appellant as to why he picked up the phone, both in his records of interview and his testimony in Court.

DISCUSSION AND CONSIDERATION

15.In this case, if the version of facts put forward by the Appellant, in particular that he had acted under the belief that the mobile phone was that of Kwok, is true or may be true, he must be acquitted. The Magistrate found against him. This finding is the subject of Ground 2. If this ground succeeds, it is not necessary to deal with Ground 1. For this reason, it will be desirable to deal with Ground 2 first.

GROUND 2

16.Mr Bruce, SC, criticized that the finding of the Magistrate against the Appellant was unsound.

17.The main line of the testimony of the Appellant was that when he picked up the phone, he thought it was the phone of Kwok. This was what he asserted as soon as he was first confronted with the allegation upon his arrest.

18.In making his finding against the Appellant, the Magistrate said, inter alia, that he noticed discrepancies between the testimony of the Appellant and what he said during the second interview. Mr Bruce, SC, submitted that the Magistrate had taken the answers of the Appellant in the interview out of context.

19.The first discrepancy which the Magistrate took note of was in relation to whether the Appellant and Kwok had been sitting near the Middle Table. He observed that when the Appellant testified, he said he had never sat at any of the 3 tables in the area where the Middle Table located but when the Appellant was interviewed he said that they had been sitting somewhere near the Middle Table.[7]

20.What the Magistrate had particularly in mind were Questions and Answers 19 and 20 in the Record of the Second Interview, which read :

“Question 19 : Why did you think that the unattended i-phone was your friend Kwok’s?

Answer 19 : It seemed that Kwok and I were sitting somewhere near there, but I was not quite sure. So I took the i-phone away.

Question 20 : … You said that you did not remember if (you) were sitting at the table with the unattended i-phone. As to your meaning of not remembering, is it that you did not remember at that time or (you) do not remember now?

Answer 20 : When I picked up the phone at that time, I already forgot if I had been sitting at the table with the unattended i-phone.”

21.The other discrepancy which the Magistrate mentioned was that whilst the Appellant testified to the effect that Kwok did answer “yes” to him when he asked her whether the phone belonged to her, he did not mention this during the second video recorded interview.[8]

22.Mr Bruce, SC, highlighted that the interview took place more than 10 months after the incident and to this the Magistrate seemed to have failed to give due consideration. He also submitted that the Magistrate had taken too stringent a view on the second matter and failed to have sufficient regard to the context in particular as the Magistrate himself found that the Appellant had talked with Kwok when they met again. Further, he submitted that the approach adopted by the Magistrate was inconsistent with the rights of silence of the Appellant.

23.In relation to the first alleged inconsistency, if the Magistrate found it is material I do not share his view. As the Appellant had testified, the evidence is his testimony not his statement previously made. When an inconsistency between the testimony and previous statement was noticed, it was normally a matter the Magistrate was entitled to take into account. However, in the present case, the CCTV footage reviewed that the Appellant and Kwok had never sat near the Middle Table. In other words, this part of the testimony of the Appellant is true and accurate. Whilst it may still be said that as a discrepancy exists the court is entitled to take it into account in assessment of credibility, as Mr Bruce, SC, observed :

(1) the interview of the Appellant took place 10 months after the incident and at the time of giving testimony the Appellant had already viewed the CCTV footage and this was reasonably expected to have a reminding effect; and

(2) at the interview the Appellant was only giving a broad description of what he was sitting and he did say he was not sure.

24.In relation to the second alleged inconsistency, I have much reservation in the finding that an inconsistency exists and if it does I am of the view that the Magistrate has attached undue weight to it.

25.In Lee Fuk Hing v HKSAR[9], a case in which the Court of Final Appeal considered, inter alia, whether the Prosecution should be permitted to cross examine or comment on an accused for his failure to give an innocent explanation before the trial and whether such act would contravene the right of silence of an accused, Mortimer NPJ said :

“… We recognize that it is a matter of ordinary experience that a failure to put forward an innocent explanation when given an opportunity to do so may support an inference that any later explanation is false but as to the nice distinction drawn in R v Littleboy [1934] 2 KB 408 and later R v Ryan (1966) 50 Cr App R 144 there is doubt as to whether there is a real distinction between using silence to infer guilt and using it to attack the weight of an account given at trial but not earlier. Even if there is such a distinction, it is one which would be difficult for a jury to understand or apply. There is a right of silence. And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.”[10]

26.Later, in the same judgment, Mortimer NPJ observed :

“If an accused person makes a statement to the police which is inconsistent with his defence which can be fairly criticized it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence.”[11]

27.Counsel for the Respondent, Mr Andrew Li, SPP, submitted that the Appellant had waived his right of silence. Indeed he has, he made statement to the police voluntarily. The question is whether the two accounts, the one given by the Appellant in testimony and what he said during the interview, are inconsistent with one another. In HKSAR v Yuen Kai Tak[12], McWalters J, as he then was, said in deciding whether such inconsistency exists, what involves is a comparison of the key elements of each account. His Lordship stressed that “the differences must be sufficiently significant before a court can say that the two accounts are inconsistent” and that “minor differences or differences on peripheral issues will not usually be enough”.[13] In HKSAR v Cheung Oi Hin[14], Lunn J, as he then was, observed that cross examination on the basis that the accused failed to offer a more lengthy explanation to the police during the investigation was impermissible.[15]

28.In the context of the present case, I do not consider what identified by the Magistrate have such a significance that would justify his observation on assessment of credibility.

29.If the alleged inconsistencies were the only bases on which the Magistrate had made his finding, it would have given rise to concern.

30.The discrepancies mentioned by the Magistrate, however, were not the only basis for his rejecting the testimony of the Appellant. He was also of the view that the assertion of the Appellant was far-fetched and incredible.

31.In forming his view, the Magistrate took into account the following matters[16], with reference to what were shown in the CCTV footage:

(1) When the Appellant went to the toilet, he left behind his rucksack at the table which he and Kwok were sitting at;

(2) The Appellant had only stayed inside the toilet for a short duration of about 1 minute 25 seconds;

(3) When the Appellant first passed by the Middle table on which the phone was later found, PW1 was still sitting there (though, as accepted by Mr Li, there is no evidence as to whether or not the Appellant noticed the presence of PW1[17]);

(4) There were many customers patronizing the restaurant at that time, a phone left behind could belong to any one of them;

(5) If Kwok had moved to the Middle table, she either has to leave the rucksack of the Appellant unattended or bring it with her;

(6) When the Appellant met Kwok again, she was at the Entrance table; and

(7) When they met again, as the Appellant confirmed during cross examination, he did not ask Kwok more questions to ascertain from her if the phone he found unattended at the Middle table belonged to her.

32.The submission of Mr Bruce, SC, was that the matters mentioned by the Magistrate, no matter viewed individually or cumulatively, were not sufficient to support a negative finding against the Appellant.

33.Further, Mr Bruce, SC, submitted that so long as one of the bases for rejection of the Appellant’s testimony is shown to be substantially flawed, the finding of the Magistrate cannot stand, in particular as the Magistrate had not prioritized the bases for his rejection.

34.It is now trite law that magistracy appeal is by way of rehearing on the evidence before the trial court, and in appropriate cases also on additional evidence adduced at appeal.[18]

35.The Magistrate obviously was aware of the fact that the Appellant is a long serving Customs and Excise officer and has a clear record.[19]

36.Numerous cases have established that an appellate court will unlikely overturn the finding on assessment of credibility by the trial court, but will do so if the Magistrate was plainly wrong.[20]

37.Mr Li drew the attention of the Court to the part of CCTV footage which showed that at the time the Appellant returned to Kwok, the latter appeared to be speaking on her mobile phone. The Appellant did not give the i-Phone to her. Both of them left the restaurant together immediately when Kwok apparently was still on her phone. Having viewed the CCTV footage, I am in agreement with this observation. Mr Bruce, SC, did not hold a different view.

38.It is not sure whether it was that the Magistrate had taken a generous view of this piece of evidence (Kwok speaking on a mobile phone) towards the Appellant, or that what shown in the CCTV footage had escaped his attention.

39.Mr Bruce, SC, submitted that the Court hearing the appeal should not take this piece of evidence into account despite the hearing is of the nature of rehearing. He relied on Unlimited Production Ltd v Filmko Pictures Ltd[21] in which what Lord Herschell said in The Tasmania[22] was quoted :

“a Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case, if the controversy had arisen at the trial; and next that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box.”[23]

40. Unlimited Production Ltd was decided in the civil context. In relation to magistracy appeals, it was held by the Court of Final Appeal in Chou Shih Bin v HKSAR[24] that such appeal “is by way of rehearing on the evidence before the trial court[25] supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so”.

41.Whilst I am inclined to think that a court hearing an appeal is entitled to take into account all the evidence already adduced before the Magistrate, in the context of the present case I do not think I need to make a ruling on the point. The matter brought up by Mr Li had not been touched upon at the trial. I do not need to guess whether or not what shown in the CCTV footage had escaped the attention of parties, in particular the Prosecution, the fact is that the Appellant had not been cross examined. The state of mind of the Appellant was of paramount importance in this case. It was only fair and appropriate to cross examine the Appellant as to what was in his mind when he saw Kwok speaking with another mobile phone. As said by Mr Bruce, SC, nowadays it is not something strange for a person to have more than one mobile phone. Without cross examination, the Court is not in a proper position to assess the weight to be put on the evidence and to consider its effect on the case.

42.Putting this matter aside, I am of the view that what mentioned by the Magistrate were matters which he was entitled to take into account. That the Appellant left behind his rucksack when he went to the toilet, he had stayed in the toilet for less than two minutes, and that he went back to the Entrance Table where they were originally seated only to find Kwok was there, were in my judgment matters which the Magistrate was entitled to attach considerable weight in his consideration about the implied assertion of belief that Kwok might have moved place or gone to or near the Middle Table.

43.Having considered the whole of the evidence, in particular the circumstances as disclosed in the CCTV footage[26] which is objectively reliable, in my judgment the finding of the Magistrate to reject the exculpatory part of the testimony of the Appellant is not one which should be disturbed. Despite my observation on the Magistrate’s view on the discrepancies he alleged, such variance in opinion is not material as to lead to the conclusion that the decision of the Magistrate is flawed. It was absurdly unreasonable in the circumstances for the Appellant to have the belief and thought he claimed.

44.Ground 2 therefore fails.

Ground 1

45.The submission in support of this ground went these way :

(1) The nature of the prosecution case had shifted, such shifting should not have been allowed as no due notice had been given;

(2) It was not clear whether the Magistrate had acted on the shift; and

(3) On either allegation put forward by the Prosecution, the conviction was unsafe and unsatisfactory.

46 Whilst, as accepted by Mr Bruce, SC, there was no material dispute on the evidence adduced by the prosecution, it was submitted that there was a shift in the nature of the prosecution case.

47.The submission based upon the way the prosecution case was put to the Appellant on cross examination and certain exchange between the Magistrate and the prosecuting Counsel[27] at various stages of the trial.

48.According to Mr Bruce, SC, it was put to the Appellant during cross examination that at the time he picked up the phone from the Middle Table, he knew very well that it was not a phone left by Kwok. Later, the Magistrate said to the prosecuting Counsel that “your case is a joint charge”. It appeared that it was agreed by the prosecuting Counsel. Then he put to the Appellant : “when you picked up the i-Phone from the vacant table and gave it to Miss Kwok, both of you knew it was not belonging to her”. MrBruce, SC, said that after the Appellant had testified, the Magistrate asked the prosecuting Counsel what his case was. He also stressed that it was important to note that the working assumption of the Magistrate in his question was that “he committed the alleged theft jointly with Kwok”[28] MrBruce, SC, said the Prosecuting Counsel gave a response which was slightly confused and inconsistent with the case he had put in cross examination.

49.Mr Li invited the Court to consider the matter in proper context and stressed the importance of the chronological order of the events and exchange which had taken place.

50.First of all, the charge against the Appellant had all along been a joint charge with Kwok.

51.The main prosecution evidence against the Appellant was the CCTV footage and the statements made by the Appellant to the Police. As Mr Bruce, SC, accepted, there was no major dispute on this evidence.

52.The first relevant exchange between the Magistrate and Prosecuting Counsel came when the Prosecution closed its case. The Magistrate stressed that the charge was one of joint charge and asked the prosecution to highlight the evidence which it relied upon to support the joint charge.[29]

53.During his initial submission, the Prosecuting Counsel indicated, though quite passively, that the prosecution was asking the Court to reject the exculpatory part of the statements made by the Appellant. Other than that, the submission cannot be said to be well structured and did give an impression at least, as Mr Li for the Respondent conceded, that the Counsel was suggesting that it was sufficient to prove that the Appellant was committing the theft alone.[30]

54.It must be noted that, immediately the Magistrate stressed repeatedly that the charge was a joint charge and that he could not consider a case of the Appellant committed the theft alone.[31] Then the Magistrate asked Prosecuting Counsel to address further how the Appellant could be proved to have committed the offence jointly with Kwok. In this connection, it is also noted that whilst Mr Boyton, Defence Counsel at the trial, had mentioned the power under section 27 of the Magistrate Ordinance to amend the charge, no amendment to the charge had been made.

55.When Prosecuting Counsel made further submission, he said these amongst other things :

“… after the 1^st defendant (the Appellant) after having taken the iPhone from the unoccupied table on return from the toilet, and having shown it to his friend, and then that moment it becomes a joint venture between the two of them … … Having done that, having – they treated the i-Phone to be their own.”[32]

56.Earlier, and before Prosecuting Counsel said these, Defence Counsel told the Court that “perhaps there is a bare case to answer on the joint charge”.[33] Subsequent to the submission made by the Prosecuting Counsel as stated in the last paragraph, the Defence Counsel indicated that he had no observation save that he said “what the Prosecution are relying on is that the – this defendant did give it to the other person”[34]. In this regards, I note that the Appellant did say during the interview that he had given Kwok the phone and Kwok did put it in her handbag before they left the Restaurant.[35] Whilst the CCTV footage shows that this had not taken place it cannot be said that there was no evidence that the Appellant had given Kwok the mobile phone at some stage.

57.Immediately thereafter, the Magistrate ruled that there was a case to answer.[36]

58.Defence Counsel then asked for time and eventually the Appellant elected to testify.

59.After all the evidence had completed, the Magistrate again asked the prosecution what evidence it was relying on to prove that the Appellant committed the theft jointly with Kwok.

60.Prosecuting Counsel have these to say :

“… First, he admitted he picked up the phone – the iPhone, he showed it to Miss Kwok, and then the inquiry, not –- without having any depth confirm that it was the phone. Mistakenly, it belonged to her, and that must arouse some question whether the defendant really actually honestly believed it belonged to the 2^nd defendant.

So, I think, based on that I think it must be – we can draw the inference that both of them knew that was not the phone actually belonged to the 2^nd defendant, and both of them knew it was taken dishonestly, that’s why they left the restaurant immediately and disposed of it by any other means – by all means, and they must have treated the phone jointly at the restaurant immediately after it was shown to her. I think that’s sufficient to draw the inference that this – the commission of this offence is a joint venture”.[37]

61.Immediately after the submission of Prosecuting Counsel, Defence Counsel have these to say[38]:

“The prosecution case has put to the 1^st defendant who says that he produced the phone to the 2^nd defendant and she put it in the bag in the restaurant. He’s given an explanation when he was first arrested. He’s maintained that explanation. He has a clear record. We say there is insufficient evidence of theft, mens rea, and, certainly, there is insufficient evidence to prove joint intent or joint enterprise in relation to that matter.

That’s correct, yes. And it was a mistake – he’s explained to you that he picked it up, showed it to his girlfriend, the girlfriend acted dishonestly, and we know from the evidence she has a previous conviction for theft. He is a man of clear record, and he gave you evidence, and there’s nothing contradicting the point that if she said it was not his or hers – if it was not hers he would hand it into this counter at McDonalds. There is nothing to show that was not true.”

62.The conclusion which the Magistrate made, as indicated in the Statement of Findings[39]^, was :

“… the only reasonable and irresistible inference that I can draw, and I so find as additional facts, is that the Defendant and Kwok both knew full well at the material times that the Phone belonged to third person, and that they shared a common intention of permanently depriving the owner of the Phone of it, and there can be no doubt that by their actions they had jointly appropriated the Phone belonging to PW1 on the date and the place of the Charge, and that both of them were dishonest on the authority of R v Ghosh[40].”

63.Apart from making the point that the Prosecution should not have been permitted to shift its case, Mr Bruce, SC, also criticized that the Magistrate had not made clear his basis of the conviction. In any case, he submitted that no matter the conviction was based on the allegation that when the Appellant picked up the phone he knew that it was not that of Kwok, or that the conviction was based on the conduct which took place when the Appellant met Kwok again, both were not supported by sufficient evidence.

64.I do not consider it was a case where the Magistrate had permitted a change of stand of the prosecution or that the Defence had been misled about the allegation. The charge was all along a joint charge and it was clear that the Magistrate had kept this in mind at all times. What Prosecuting Counsel put to the Appellant initially in cross examination might not have aptly and sufficiently reflected the charge.[41] This explained why the Magistrate found it fit to speak to the Prosecuting Counsel.[42]What Counsel did then was to put to the Appellant an allegation which stood well with the charge.[43]

65.Defence Counsel is an experienced criminal law practitioner. He did not do or say anything which indicated that the defence had been misled or prejudiced. There was no application of any sort. There is nothing to indicate that the Magistrate was not making a decision as to whether the Prosecution was able to prove against the Appellant a joint commission of offence with Kwok.

66.Notwithstanding that, Mr Bruce, SC, submitted that the position of the prosecutor was difficult to follow. It was also his submission that it is very difficult to discern from the Statement of Findings the basis upon which the Appellant was convicted.

67.The Court was expressly informed at half time if not earlier that the allegation was that a joint venture was formed upon the Appellant meeting Kwok again after he had been to the toilet.[44]

68.More than one person may be charged jointly so long as they are alleged to have committed a single offence. The basis of a joint charge may be that all the accused were principals, or that one or more of them was the principal and the other(s) was secondary party in the sense that he has aided, abetted, counseled or procured the offence, or that a joint enterprise is alleged. In Sze Kwan Lung v HKSAR[45], Bokhary PJ observed that the doctrine of joint enterprise was distinct from the common law principles of accessorial liability whereby the person charged with aiding, abetting, counseling or procuring an offence.[46] When Counsel in the present case talked about a joint venture, it is not clear whether or not he was referring to a joint enterprise. It appears to me the Magistrate thought, and had considered the case, on the basis that a joint enterprise was alleged.

69.There might be good reasons for the Magistrate to indicate repeatedly his concern that the charge is a joint charge. If there was a belief that a joint charge necessarily implies an allegation of joint enterprise, Sze Kwan Lung and DPP v Merriman[47] might have been neglected. In Merriman, Lord Diplock said :

“Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteen century, to charge them in a single count of an indictment. Where such a count was laid against more than one defendant, the jury could find each of them guilty of one offence only : but a failure by the prosecution to prove the allegation, formerly expressly stated in the indictment but now only implicit in their joinder in the same count, that the unlawful acts of each were done jointly in aid of another, did not render the indictment ex post facto bad or invalidate the jury’s verdict against those found guilty. To quote Hawkins again :

‘On such indictment … some of the defendants may be acquitted, and others convicted; for the law looks on the charge as several against each, though the words of it purport only a joint charge against all.’

I conclude, therefore, that whenever two or more defendants are charged in the same count of an indictment with any offence which men can help one another to commit it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another defendant to do such an act, and, that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent.”

70.In the present case, Kwok pleaded guilty at the beginning of the trial. Whilst it is not normally a step taken in a Magistrate’s Court, had it been a trial before the jury the indictment will be amended to the effect that the Appellant be singly charged and alleged to have committed the offence together with Kwok. In the circumstances, unless the basis of allegation against the Appellant is that he was a secondary party or a party in a joint enterprise, the jury’s task is to decide whether every element of offence is proved against him.

71.I n any case, no matter whether Prosecuting Counsel has led the Court to restrict unnecessarily it’s consideration, in the circumstances of the present case I accept that what Prosecuting Counsel told the Court, together with what was stated in the Particulars of Offence, has the significance of confining the alleged theft to the time between the meeting again of the Appellant and Kwok and their leaving of the Restaurant. It is obviously from the CCTV footage that Kwok was not in a position to know the existence of PW1’s mobile phone until it was shown to her at the time she and the Appellant met again. In other words, Kwok could not have committed the offence of Theft together with the Appellant before that time. In additional, the allegation against Kwok was that of theft, not handling of a property already stolen by the Appellant.

72.It follows that there was an implied stand of the Prosecution : the Appellant did not complete the offence of Theft before he met Kwok again.

73.That begs one of the questions raised by Mr Bruce, SC : as there was no evidence of the content of exchange between the Appellant and Kwok after the Appellant’s testimony had been rejected, what caused the forming of mens rea of the Appellant at that stage?

74.Besides, although the timing of when the alleged “joint venture” was clarified, the exact basis of the allegation remained less than clear, in particular the role and state of mind alleged against the Appellant and Kwok respectively.

75.Even if what Counsel meant was a joint enterprise, it could have taken many forms. As Bokhary PJ said in Sze Kwan Lung v HKSAR[48] :

“’Joint enterprise’ is an expression used to denote the conduct of two or more persons who take part together in a course of criminal conduct. So many and varied are the circumstances in which the doctrine of joint enterprise operates that no single case can be expected to provide an occasion for discussing every aspect of the doctrine.”

76.In the circumstances of the present case, I am to examine whether the finding of guilt on the basis that the Magistrate described is a safe and satisfactory one. It involved drawing of inference. The question is therefore whether the conclusion the Magistrate made is the only reasonable and irresistible inference which can be drawn from the whole of the evidence.

77.Mr Brcue, SC, submitted strongly that no such inference could be drawn. He said the analysis of the Magistrate is seriously flawed.

78.Mr Li submitted that albeit it was the Appellant alone who took the i-Phone from the Middle Table, appropriation was in the circumstances a continuous act, and the theft was completed together by both the Appellant and Kwok when they met again at the Entrance table as it was then they had a joint mind.

79.Whether appropriation can be a continuous act was examined by the English Court of Appeal in Atakpu[49]. There were cases prior to Atakpu which held that appropriation is an instantaneous act complete at the moment that a person assumes the rights of the owner[50] as well as cases which held that not every act of appropriation is instantaneous and it can be a continuous act[51]. Ward J said it is a difficult question to answer and observed that a strict reading of the House of Lords decision in R v Gomez[52]leaves little room for a continuous course of action. Without making a decision on the point, Ward J said :

“We would not wish that to be the law. Such restriction and rigidity may lead to technical anomalies and injustice. We would prefer to leave it for the common sense of the jury to decide that the appropriation can continue for so long as the thief can sensibly be regarded as in the act of stealing or, in more understandable words, so long as he is ‘on the job’”.

80.The Magistrate did not mention that he found an act of continuous appropriation on the part of the Appellant. In my judgment, the present case should be decided by reference to Section 4(1) of the Theft Ordinance, and I have no reason to think that the Magistrate had not done so. Section 4(1) provides :

“Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.”

81.It is for the Magistrate to make a finding as to when did the Appellant, if at all, assumed the rights of the owner by keeping or dealing with the phone as its owner. The final finding of the Magistrate was as set out in paragraph 62 above. Mr Bruce, SC, criticized the Magistrate as being unspecific as to when a joint intent was formed by saying that “at all material time” both of them shared a common intention. This matter does not cause me concern. Reading in context the Magistrate must have intended to mean the time when the Appellant and Kwok met again after he had picked up the phone. This was the only duration at the Restaurant in which it was possible for the Appellant and Kwok to have jointly dishonestly appropriated the phone knowing that it belonged to a third person and shared a common intention of permanently deprive the owner of the phone.

82.The question then is : does the evidence support a finding that the Appellant stole the phone during that duration?

83.CCTV footage shows that the Appellant and Kwok entered the Restaurant together. After the Appellant had purchased food they sat together at the Entrance Table. After consumption of food, the Appellant went alone to the toilet by walking past the toilet where the Middle Table located. He left his rucksack with Kwok who was then sitting alone. When he came out from the toilet, he walked past the Middle Table. He picked up the phone in question. At that time, nobody was sitting at any of the three tables located in the corridor. Neither the Appellant nor Kwok had ever sat at any of the three tables, including the Middle Table. The Appellant then reunited with Kwok who was at the Entrance Table. He showed the phone to her and they had a brief exchange of words. Content of the exchange is unknown since the only source of evidence is the testimony of the Appellant and it was rejected. After the short exchange, the Appellant put the phone into his bag. The two of them then at once left the Restaurant together.

84.As mentioned above, magistracy appeal is in the form of re-hearing. In the present case, what I am to do is to decide whether the conclusion of a theft jointly committed by the appellant and Kwok is the only reasonable and irresistible inference that can be drawn in the whole of the evidence.

85.Having considered the whole of the evidence, bearing in mind that the exculpatory part of the testimony of the Appellant was rejected by the Magistrate and that this was a decision which the Magistrate was entitled to make, in my judgment, the conclusion that the Appellant had jointly stolen the mobile phone with Kwok was the only reasonable and irresistible inference that was properly made. The Magistrate was entitled to find that it was at the time of the two meeting again that the Appellant decided to assume the right as a owner and that he stole the mobile phone jointly with Kwok.

86.In reaching the conclusion, I have taken into account the clear record of the Appellant, that he was a long serving Customs Officer having engaged in volunteer work[53] and he and Kwok were boy friend and girl friend, which the Magistrate had done as well.

87.The decision of both the Magistrate and me were made on the basis that, as the Prosecution alleged, there was a joint venture of both the Appellant and Kwok as described in paragraph 62 above. Indeed, in the light of the decision in Merriman[54], so long as all the elements of the offence of Theft are proved against the Appellant, the Magistrate could have found him guilty even if he was acting on his own and not in concert with any other as a charge against the defendants in a joint charge is joint and several. I have to stress, however, that this is not the basis of my decision in this case.

88.Ground 1 also fails.

CONCLUSION

89.Both grounds of appeal fail. In my judgment, the conviction is sufficiently supported by evidence. It is neither unsafe nor unsatisfactory.

90.The appeal therefore is dismissed.

Mr Andrew Li, SPP of Department of Justice, for the respondent

Mr Andrew Bruce SC, leading Mr David Khosa, instructed by Alan Ho & Co., for the appellant