HKSAR v. CHEUNG MAN WAI

HCMA163/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 163 OF 2002

(On appeal from KCCC 2350 of 2001)

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J U D G M E N T

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1. The appellant was convicted by Ms Tracy Chan, sitting at Kowloon City Magistracy, of the offence of theft. The particulars of the charge are that on 14 September 2001, the appellant in the Report Room of Wong Tai Sin Police Station stole one silver wrist chain, valued at $600, one gold necklace, valued at $800 and one silver ring, valued at $600, the properties of Chau Ka Ho. The appellant now appeals against his conviction.

Facts of the case

2. The owner of the stolen properties gave evidence that on suspicion of involvement of a theft case, he was arrested and detained in a temporary cell in Wong Tai Sin Police Station. He had on his person a cigarette lighter, inside which were placed the three stolen items. He gave evidence that his person was searched and the cigarette lighter was taken away by a police constable for safe-keeping. He was released from police custody later that day and the cigarette lighter was returned to him, but he subsequently discovered that the three pieces of property placed inside the lighter were no longer there. He then made a report to the same police station.

3. A police constable gave evidence that he was responsible for the cigarette lighter in question, and on the day in question he had placed it on top of a desk. He saw the appellant, who was a police officer, come into the same room and pick up the said cigarette lighter to have a look. He then tried to ignite the lighter but was unsuccessful. He then took out the inside of the lighter to have a look, then replaced the lighter. He also told the police officer that there were some things inside the lighter. Some four hours later, when the police officer was still in the Report Room, he again saw the appellant come into the Report Room and pick up the same cigarette lighter for a look but the police officer did not see what the appellant did with it.

4. A second police officer PW3 gave evidence that he was instructed to investigate this particular case. At some time past 5 p.m., he saw the appellant in the police station. When he questioned the appellant about whether he had taken the ornaments, the appellant replied that the ornaments were placed in a thick growth of grass outside the Report Room. He then pointed at the growth of grass and asked PW3 to go and retrieve the things therefrom. PW3 insisted that the appellant should do that, whereupon the appellant picked up the properties in question which were wrapped in a paper towel from the thick growth of grass.

5. In two video recorded interviews, the voluntariness of which was not challenged at the trial, the appellant admitted having taken away the properties in question. However, his explanation was that he wanted to look after the gold ornaments better and that at a later time he would return them to either the suspect or to the officer in charge of the custody of the properties. However, he said that later on he forgot to do it.

6. The magistrate found the explanation difficult to accept. The appellant had over 10 years' experience as a police constable, yet he put properties belonging to a suspect which were not under his custody into his trouser's pocket without notifying the officer concerned. The appellant admitted that he later changed from his uniform into his civilian clothing and put the gold ornaments in question into the trouser's pocket of his civilian clothing. And yet, he still forgot, when leaving the police station, to deal with the gold ornaments in a proper manner. The magistrate said that she found this impossible to accept.

Ground of appeal

7. The only ground of appeal advanced on behalf of the appellant was that the magistrate failed to or failed to sufficiently consider the objective test laid down in the case of R. v. Ghosh [1982] 75 Cr. App. R.154 in considering whether the appellant's conduct was dishonest or otherwise.

8. The magistrate adjourned the case for one week to consider the evidence. When she gave her verdict one week later, she gave quite detailed reasons for the verdict of guilty. She was clearly aware of the test to be applied as laid down in the case of Ghosh. She mentioned that defence counsel had invited her to apply the Ghosh test, but she said that she could not accept that because she had rejected the appellant's explanation. She said that what the appellant did was to put the suspect's properties into the trouser's pocket of his uniform and then subsequently transferred them to his civilian clothing, and then took the properties out of the police station. She said that that conduct was quite clearly dishonest conduct and also quite clearly conduct which amounted to theft. She said that she did not consider it necessary to apply the Ghosh tests in those circumstances. She said that being a police officer, the appellant obviously knew that by taking away a suspect's personal properties he was appropriating them, and by doing so he was acting dishonestly.

9. In her Statement of Findings, the magistrate again reiterated that defence counsel during the trial had invited her to apply the Ghosh test. She reiterated that since she did not accept the appellant's explanation, his conduct in placing the suspect's properties into the trouser's pocket of his uniform and then transferring them into the trouser's pocket of his civilian clothes before taking them out of the police station was manifestly dishonest and was conduct which amounted to theft.

10. In my judgment, when the magistrate considered these matters, she was in effect considering the objective test laid down in Ghosh. The magistrate said that as a police officer, the appellant obviously knew that by appropriating a suspect's properties and taking them away, he was engaged in dishonest conduct, and also conduct which amounted to theft. By giving consideration to that matter, the magistrate was in effect considering the subjective test laid down in Ghosh.

11. In HKSAR v. Chung Chun Lit, CACC3/2000, the Court of Appeal, in relation to the case of R. v. Ghosh, said this at page 13 :

" R v Ghosh was considered and applied in R v William Roberts [1987] 84 Cr App R 117 where the English Court of Appeal held that a full Ghosh direction was not necessary in circumstances where the appellant had never raised the issue that no one would think that what he had done was dishonest. ...."

The Court of Appeal then quoted what O'Connor LJ had said in William Roberts when this was said :

".... He had never raised the problem and unless the problem is properly raised it does not seem to us that it is necessary for the trial judge to embark on the full Ghosh direction. It is a matter for the judge, depending on the facts of the case, because where the issue is raised properly the Ghosh direction requires the jury to consider a whole lot of things."

Then, dealing with the facts of that particular appeal, the Court of Appeal said this :

".... all of the surrounding circumstances strongly indicated, to the point that it was obvious, that the applicant must have known he was acting dishonestly. It would be surprising to say the least that a person with the background and experience of the applicant, with seventeen years experience as a Customs Officer, could have thought that he was legitimately and honestly entitled to indulge himself in the kind of self help alleged in this case. Adopting the words in William Roberts 'for somebody to put forward this kind of assertion is not only not possible, but it was not done'. At no stage in the present case was evidence adduced that the applicant did not know anyone would think that what he did in relation to Miss Chow and her property was dishonest."

In my view, those words by the Court of Appeal were entirely apposite to what this appellant had done in relation to the suspect's properties, namely that no one would have thought that he as a police officer could have thought that he was legitimately and honestly entitled to deal with the suspect's properties in the way that he admitted he had done.

12. In HKSAR v. Cheung Wai Chun, CACC258/2000, the Court of Appeal at page 6 said this :

" What needs to be said immediately is there is no overall requirement that a Ghosh direction must be given in all cases involving issues of dishonesty. Everything depends upon the circumstances of each case.

In the instant case it was obvious that honesty was not a live issue. It is clear from the outline facts which had been given that the scheme by its very nature was fraudulent and accordingly anyone involved could have been in no doubt that what has been done was dishonest. It is to be noted that it was no part of the defence which was being put to witnesses that what was being done was not dishonest."

13. In my judgment, the magistrate in fact did consider the two tests laid down in Ghosh, and even if she did not, the facts of the case were such that there would have been no need for her to consider the tests.

14. The appeal is accordingly dismissed.