HKSAR v. CHENG PUI MAN, DICKY

HCMA 651/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 651 OF 2001

(ON APPEAL FROM FLCC 80/2001)

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J U D G M E N T

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1. The Appellant was convicted after trial of one count of theft, contrary to Section 9 of the Theft Ordinance Cap. 210. He now appeals against his conviction.

2. The particulars of the offence allege that the Appellant on 4 January 2001 at Idol Fashion Shop at No. 36, 2/F, Tai Po Plaza, Tai Po, New Territories stole one "Smack" sweater, valued at HK$79, the property of Chung Yuet Yin.

3. The prosecution's evidence was that on the material day, the Appellant and his girlfriend went to the Idol Fashion Shop and bought two pairs of trousers. As the girlfriend was paying for these at the cash desk, Ms Hung who is the co-owner of the Idol Fashion Shop, saw the Appellant pick up a tee shirt, which was displayed near the door, and put it into his plastic bag and proceeded to walk out the door. Ms Hung then hurried after him and at the doorway she saw her husband returning. She immediately told her husband what had happened and her husband, who is Mr Chung Yuet Yin, then intercepted the Appellant and found the tee shirt inside the Appellant's bag. The Appellant then said to Mr Chung that he did not know how the tee shirt came to be inside his bag. The police were called and under caution, the Appellant admitted that he had placed the garment inside the bag.

4. The Defendant elected to give evidence and also called his girlfriend as a defence witness. The Defendant gave evidence that when he went to the dressing room to try on the trousers, he had left his plastic bag on the floor outside the dressing room. After he had tried on the trousers, he had picked up his bags and left the shop while his girlfriend paid. He said he was intercepted and questioned by Mr Chung outside the shop and Mr Chung had accepted that it was a misunderstanding. But a half hour later when he and his girlfriend returned to the shop to pick up the two pairs of trousers that were being altered, Mr Chung then accused him of stealing the tee shirt and demanded that he pay for it. When the Appellant refused, Mr Chung then called the police. The Defendant's girlfriend gave evidence which corroborated the Defendant.

5. The Appellant's evidence is that he did not put the tee shirt in his bag and he did not know how the tee shirt got there. He also denied making any admissions to the police. In the course of prosecution witness Mr Chung's evidence in re-examination, he had inadvertently said that the Appellant had told him that he had a previous conviction record. Defence counsel then applied for a trial de novo on the grounds that this evidence was prejudicial to the Appellant, but the magistrate refused the application.

6. The Appellant appeals against his conviction on the grounds that he was not given a fair trial by reason of the disclosure of the Appellant's criminal conviction, and that the learned magistrate in rejecting the application for a trial de novo applied the wrong test.

7. Before I deal with that ground of appeal, I first have to deal with the Respondent's contention that the Appellant's appeal against conviction is out of time.

8. Section 114(a) of the Magistrates Ordinance, Cap. 227 states that the Appellant "shall within 14 days after the day of his conviction or the order or determination by the magistrate" lodge his appeal against conviction. The Respondent submits that the word "determination" here means the date when the conviction of the Appellant was recorded. With the greatest respect I do not agree. I agree with Bewley J in the case of AG v. Chan Wah-chuen( that determination means:

"a final decision on all matters in issue between the informant and the defendant. This includes sentence upon conviction."

9. In dealing with the Appellant's ground of appeal, the Appellant's counsel submitted that a test which should be applied by the learned magistrate in considering whether to order a trial de novo is that laid down by Lord Ackner in R v. Liverpool City Justices, ex parte Topping(* which is:

"Would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?"

That "reasonable suspicion" test was rejected by the House of Lords in the R v. Gough (**. Lord Goff added the correct test was this:

"... having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

Lord Goff also added that he preferred:

"to state the test in terms of real danger than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias".

And he added:

"... it was unnecessary ... to require that the court should look at the matter through the eyes of a reasonable man, because the court ... personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time."

10. The "real danger" test now binds the courts of Hong Kong because Gough was applied to Hong Kong by the decision of the Privy Council in Panel on Takeovers and Mergers v. Chan Kai Man William [1995] 3 HKC 517.

11. In Nattrass v. AG [1996] 1 HKC 480, Keith J was of the view that this "real danger" test should also be applied by a judge having to rule on his own alleged bias. Although the House of Lords in the Gough case was addressing the question of the test to be applied by a superior court when it was alleged that the inferior court may have been affected by a bias. Keith J added that what a reasonable man might think was a factor which the judge was entitled to take into account in determining the ultimate question of whether there was a real danger of bias on his part.

12. It is clear therefore from the authorities that the "real danger test" is applicable in Hong Kong and that the test in Topping, the reasonable suspicion test, is no longer applicable.

13. In this case the learned magistrate at page 14 of the appeal bundle dealt with the disclosure of the conviction record by Mr Chung. She said:

"I took care to put this completely from my mind and I did not place any weight on this whatsoever when reaching my decision."

This appeal, therefore, hinges on two questions. Firstly, did the learned magistrate exercise her discretion wrongly when she rejected the application for a trial de novo? And secondly, was there a real danger of bias?

14. Dealing with the first question, the Appellant's counsel submitted that the learned magistrate, if she had applied the reasonable suspicion test as in Topping, would have exercised her discretion to order a trial de novo. Therefore, when the learned magistrate refused the application she had applied the wrong test.

15. As I have already said, the reasonable suspicion test is not the proper test to be applied in Hong Kong as it has been replaced by the real danger test.

16. Applying the real danger test and taking into account the point of view of a reasonable man, was the learned magistrate wrong in not ordering a trial de novo? We must not forget that the learned trial magistrate is a professional judge who, sitting as both a judge and a jury, has to make constant decisions as to the admissibility of certain evidence based on, amongst other things, the prejudicial effect of such evidence. We have to trust that when a professional judge makes a decision that certain evidence is inadmissible because that evidence is more prejudicial than probative, that in her final analysis of the evidence she would have dismissed such evidence from her mind. In this case, the learned trial magistrate very properly said, towards the end of her Statement of Findings, that she completely dismissed the evidence of the Appellant's previous convictions from her mind in coming to her conclusion as to the guilt or innocence of the Appellant.

17. After reading both the learned magistrate's Statement of Findings and her oral reasons for verdict, I cannot see anywhere that the learned magistrate had exercised her discretion wrongly in refusing to order a trial de novo.

18. It is clear from the Statement of Findings and the affirmation of Mr McGuinniety, counsel for the Appellant at the trial, that the revelation by the prosecution witness was that the Appellant had told him that he had a previous conviction. It would appear therefore that the actual offences which the Appellant had committed in the past were not revealed to the learned magistrate.

19. Had the actual offences in the previous conviction been revealed, it may have perhaps made the Appellant's argument slightly stronger because I can see from the criminal record of the Appellant that his previous convictions were for theft and robbery. If the actual offences were disclosed, the Appellant's counsel may argue that the previous offences, being of a similar nature to the offence that his client was facing, would inevitably cause the learned magistrate to be biased against the Appellant as the nature of the offences were so similar. That is not the case here.

20. In this case, the learned trial magistrate in her Statement of Findings and in her oral reasons for verdict went through the evidence in detail and came to her conclusion after properly assessing the weight and credibility of the evidence of the witnesses.

21. She came to the conclusion that the prosecution has proved its case beyond a reasonable doubt. She not only merely accepted the prosecution's evidence but she evaluated the discrepancies of the prosecution witnesses and also considered very carefully the evidence of the defence but came to the conclusion that the defence witnesses were not credible. It is clear from a reading of the learned magistrate's Statement of Findings that the knowledge of the Defendant's previous conviction played no part in her final analysis of the evidence.

22. So having regard to all the circumstances, I have come to the conclusion that there was no real danger of bias on the part of the learned magistrate and therefore the appeal must fail. The appeal against conviction is therefore dismissed.