THE QUEEN v. WONG SHUI HEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 99 of 1987

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JUDGMENT

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1. The appellant was found guilty by the Magistrate of the theft of a bottle of Knorr seasoning valued at $4.20 from the Wellcome Supermarket, and was conditionally discharged upon her signing a bond in the sum of $250 to be of good behaviour for 6 months.

2. On the 13th September last year, the appellant went to: the"" supermarket at about 12 noon carrying a violet coloured bag on her shoulder. Her movements in the supermarket were observed and monitored by a Security Officer, and she was seen to go to a shelf where she picked up the subject matter of the charge, carried it against her chest, and walked to a shelf where noodles were displayed and there placed the bottle of Knorr seasoning in her bag. After doing this, she took up a basket and placed in it some eggs, flour and sugar and then went to the cashier where she paid only for these items. She then left the supermarket but the Security Officer approached her and reminded her that she had not paid for the bottle of Knorr which was in her bag. She replied in a loud voice: "How can you say I did not pay for anything?" The Security Officer then asked her to go to the office, the police eventually called and she was subsequently charged with theft. In her defence she denied stealing, and that she had been to see a doctor that day and paid the electricity bill, but what this had to do with the offence was irrelevant. However, she repeatedly stated that she forgot to pay for the bottle but had paid for the other items in the basket. The violet bag was empty aside from the bottle of seasoning.

3. Three grounds of appeal have been advanced on behalf of her appeal, the first one being that the magistrate had failed to assist the appellant. At the very start of the trial, the magistrate asked her to listen to the evidence and to cross-examine the witness as required. She was then also told if he held that there was a case for her to answer, she could either give her evidence or remain silent, and in either event, was entitled to call witnesses :on her behalf. When she cross-examined the witness at the end of his evidence, the magistrate assisted her by putting some questions on her behalf.

4. The magistrate held she had a case to answer at the end of the prosecution case and he again explained to her the choices which were open to her. When she asked "What would I say?", the Court reminded her that when she cross-examined the witness she had put to him she had forgotten to-pay and asked her whether she wished to give evidence. She was further told by the magistrate that if she gave evidence she could be cross-examined but she could also remain silent if she wished.

5. The appellant wished to tell her story and she started doing so from the dock but the learned magistrate decided to take her evidence on oath. In the course of her evidence, she stated that she was ill that day and she went to market, and that she had a poor memory and forgot to pay. At the end of her evidence she was reminded of her right to call witnesses but she declined the invitation. I do not think the magistrate in respect of the first ground of appeal could have had done more without descending into the arena. The case of Szeto Ming v. R.⁽¹⁾ was cited in support of the first ground of appeal but the circumstances there was entirely difference from this.

6. In that case 0' Connor, J. said: -

"Of course what was said before the first magistrate was not in evidence before the trial magistrate though it was part of the case file, but in my opinion the trial magistrate ought to have assisted the appellant to conduct his case, at least to the extent of advising him that he could put her previous evidence to her and if necessary prove it in evidence. There is no circumstance which appeared in that case as appears in this case. In R. v. Page, Maule J. said 'the fiction of law in criminal cases is, that the judge is counsel for the prisoner', I consider those words are still applicable today in a case where an accused person is unrepresented. It is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as necessary for the proper conduct of his defence.  R. v. Doubleday, R. v. Barket and see R. v. Suen Chuen. Admittedly a judge or magistrate must be careful not to step into the arena, but that does not mean that he is prohibited from ensuring that any defence a defendant might have or any point he has to make is fully brought out."

7. It would have been very difficult for the magistrate in this case to have gone further than what he had done, and to put forward a defence for the appellant in the way suggested in Szeto Ming, her excuse being one of forgetfulness. The second ground of appeal deals with the statement that she was ill and had consulted a doctor earlier that day. It is suggested here that the magistrate ought either to adjourn the case for the appellant to obtain a medical certificate or for her to call the doctor whom she had consulted, as her witness. There was no indication at the end of her evidence that she had ever made any request for a doctor or for any other witnesses to be called, although it was suggested to her first1y at the beginning of the trial and at the end of her evidence that she could call witnesses if she wished. It was submitted that a different picture might well have emerged if the magistrate had had the benefit of a medical report on the appellant after he had asked her what she was suffering from. This, in my view, is purely speculative because looking at the evidence given by the security guard, it does not appear that the appellant was then suffering from any illness or that that condition, if present on the day of the offence, had inhibited her, firstly, from going into the supermarket at noon that day or secondly, from continuing with her shopping for items, which she did not forget to pay for.

8. It is appropriate to repeat what has been said in the case of Chan Leung v. R.⁽²⁾ by Li J. (as he then was) on the extent of the assistance to be given by a judge or magistrate to an unrepresented defendant:-

"Taking all these dicta which have fallen from the Courts of Appeal from time to time in England as well as in Hong Kong I come to the conclusion that generally the trial magistrate's duty in assisting an unrepresented accused does not go beyond advising him of his legal rights in matters of procedure and in law. In appropriate circumstances it may be desirable for the magistrate or the trial judge to ask witnesses questions not so much to assist the accused but as to ascertain the truth and to ensure that justice is done. Further his duty may include some assistance to the accused by asking a few pertinent questions if such questions were apparently necessary. There is no duty on the part of the magistrate to conduct the defence as such or take over the cross-examination from the accused."

9. With respect I endorse what was said in that case and also, the meaning which the learned Chief Justice places on the word 'duty' in that Judgment; in the case of Reg. v. Tong Kwok-yip⁽³⁾ :

"Although the word 'duty' is used in some passages in that judgment, I do not think that Li, J. was seeking to enforce any obligation on the magistrate to ask questions to assist the accused or to ascertain the truth of the matter where he is unrepresented. As I read his judgment, he is saying that it is perfectly proper for a magistrate to do so if he wishes, not that he must do so."

10. The complaint is made that the magistrate did not take into consideration the medical condition of the appellant when considering the evidence because not a word of it appears in his statement of findings. In the circumstances, he probably considered that this matter was irrelevant, and if so I could not say he was wrong in doing so.

11. What the magistrate did consider as being relevant were her personal circumstances after conviction, that is, when he discharged her conditionally and bound her over to keep the peace for 6 months in the sum of $250.

12. In my judgment she was rightly convicted of this offence and her appeal against conviction is accordingly dismissed.