HKSAR v. TSE SHING CHUN

HCMA 420/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 420 OF 2005

(ON APPEAL FROM TMCC 349/2005)

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BETWEEN

HKSAR Respondent
and
TSE Shing-chun Appellant

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 22.6.2005

Date of Judgment : 22.6.2005

Date of Handing down Judgment : 22.6.2005

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J U D G M E N T

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Background

1. The Appellant (originally D1 at the trial) was jointly charged with his father (D2) with an offence of “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210. He pleaded not guilty before Mr. Colin Mackintosh in Tuen Mun Magistracy and was convicted after trial. He appealed againstthe conviction.

2. Although the trial was conducted in English, I conducted the appeal in Chinese as the Appellant was not legally represented. Afterhearing submissions I dismissed the appeal. I gave oral reasons at the time and I now reduce my reasons in writing, with an elaborationon the background.

Prosecution case

3. The Appellant and his father were intercepted by police officers in Tin Shui Wai in the evening on 23.1.2005 when they were in possessionof three bicycles, one of which was the subject matter of the charge (Exhibit 1). Exhibit 1 had a locked front wheel and was, atthe material time, being moved and pushed along by the Appellant and his father with the front wheel piggybacked onto the pannieror the rear rack of another bicycle. Exhibit 1 was not in prime condition. It had no saddle, it was dirty and rusty in places. Ithad some maladjusted gears and a creak in its frame.

4. When the Appellant was asked by a police officer whether Exhibit 1 belonged to him, he answered in the affirmative initially. Whenhe was asked whether he had the key to the lock, he gave no answer. When he was asked again he then said it did not belong to him,that he had seen the bicycle with its front wheel locked and he found the bicycle of use. The Appellant begged for a chance and statedthat he had been driven by greed at the time.

5. There was a challenge to the admissibility of the record of the conversation. The learned magistrate admitted it into evidence.

Defence case

6. The Appellant gave evidence. He testified that the bicycle had been there for at least a couple of months. Although it was lockedthe Appellant said he believed it had been abandoned because of its condition; because it had not been moved; and because it waspiled up with other dirty old bicycles. Another reason the Appellant gave was that the bicycle was not attached to railing providedfor locking bicycles.

Grounds of appeal

7. The Appellant’s ground of appeal, simply put, was that he had not committed theft. He emphasised the conditions of the bicyclein question to say that he had only taken it as he thought it was rubbish. He told me in court that one would not steal somethingof no value, it did not make sense for one to do so. He admitted he was greedy at the time, saying that even collecting rubbishwas a sign of greediness.

Judgment

8. There being no dispute that the Appellant had taken the bicycle Exhibit 1 when he was intercepted by the police, the only issuesbefore the learned magistrate were (i) whether Exhibit 1 was an abandoned object, and if it was not, then (ii) whether the Appellanthad the necessary dishonest intent when he took Exhibit 1.

9. The learned magistrate was fully aware of the elements of theft the prosecution needed to prove. He was aware of the clear recordof the Appellant, which was relevant both to credibility and propensity.

10. The learned magistrate stated in detail that in Tuen Mun, Yuen Long and Tin Shui Wai area, (and indeed the whole of the New Territories)the use of bicycles was widespread. The bicycles came in all shapes and sizes and people took all sorts of different attitudes tothem. Some owners were careful and vigilant, while others were careless and reckless.

11. The learned magistrate was aware and reminded himself that each case had to be judged on its own merits to see if the prosecutionhad proved the elements of theft. The learned magistrate also stated ‘………the courts have got to be careful not to encourage a free-for-all regarding bicycles, otherwise it would provide a thieves’ charter.’

12. The learned magistrate, having reminded himself that the bicycle in question was in very poor condition and that it could not beridden, came to the conclusion that the owner of Exhibit 1 had not abandoned it. He relied on the fact that the bicycle was locked by its owner. The learned magistrate was of the view that the owner ‘may have been careless about I; maybe he could not be bothered about it; maybe he did not intend to ride it again; but he had notgiven up his rights of ownership……’

13. The learned magistrate also concluded that the Appellant did not believe the bicycle to be abandoned. The Appellant at first saidthe bicycle was his. When presented with the obvious question about the lock, the Appellant then said the bicycle did not belongto him, and that he was ‘driven by greed’. The learned magistrate was sure that the Appellant was dishonest when he took thebicycle.

14. The learned magistrate has fully dealt with the complaints when the admissibility of the record was challenged. Having read the reasonshe gave for admitting the record into evidence, I cannot find any fault.

15. There is nothing to show the conviction was unsafe or unsatisfactory. The appeal is dismissed.

Judianna Barnes
Deputy High Court Judge

Ms. Olivia TSANG, Government Counsel for the Respondent

Appellant TSE Shing-chun in person