HKSAR v. Tsoi Ho Kit

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1172 OF 1997

(ON APPEAL FROM SPC 2328 OF 1997)

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J U D G M E N T

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1. The Appellant was convicted before a magistrate on 3 October 1997 of shoplifting at the Duty Free Shop inside the departure hall of Kai Tak International Airport on 24 July 1997. Sentence in respect of this conviction was adjourned to 21 October 1997. The proceedings was conducted in punti dialect. On that day the appellant applied for review on 2 grounds, namely

1) Appellant had difficulty with punti dialect and asked for retrial and

2) he had located a witness and wanted to re-open his case.

2. On 24 October 1997 the magistrate set aside the conviction and allowed the appellant to re-open his case to call the witness and to hold an enquiry as to the dialect problem. He was subsequently convicted after this review.

3. The main ground of appeal is that the learned magistrate erred in refusing to order a trial de novo because of the dialect problem.

4. To support his application for review this appellant filed an affidavit to say that at the trial he was anxious as he could not fully understand the witnesses' evidence and had to think over the questions during cross-examination. His anxiety was shown in his facial expression and hence his demeanour when he gave evidence. His solicitor also filed an affidavit to say that he was not aware the appellant was not fluent in punti dialect. It was only after trial that the appellant told him he was not fluent in Cantonese and he had to take time to understand the Cantonese spoken.

5. To illustrate this point Mr. Cheng Huan S.C. for the appellant referred to a passage in the translation of the court record at p.61 which is as follows:-

"Ct: Because what you have said - is not in standard Cantonese, I haven't heard you clearly.

A: Yes, sorry, yes

Ct: So I am going to repeat your evidence to you once, to avoid misunderstanding in case I haven't heard you clearly, Okay.

A: Yes"

6. That evidence had not been repeated by the learned magistrates. This contradicts with his statement of finding at Para. 14 when he said "When I did not fully understanding (Sic) his testimony, I clarified from him immediately and I would not take any of these factors to hold any prejudicial view against him". Any how this clearly demonstrates the point that it was inevitable to the magistrate that the appellant had a language problem.

7. In R v Ng Lam Shing [1980] HKC 461 the appellant, an elderly Chiu Chau was far from comfortable in Punti. He pleaded guilty at the trial. The charge was explained to him in Punti. The appellant appealed against sentence. The judge hearing the appeal quashed the conviction and ordered a re-trial on the basis that the plea could have been entered against the appellant because of a misunderstanding. In R v Kwok Leung and Others [1906] HKLR 161 evidence after the prosecution given in a language of which the Defendant was ignorant and was not translated the conviction was quashed on appeal.

8. Directly arriving out of the dialect problem the appellant had stated in his affidavit that it took him twice to understand. This could have affected his demeanour. In his reason given orally in Court he said he did pay close attention to the demeanour of the witnesses. Concerning the demeanour of the appellant, the learned magistrate said " ... his demeanour when he was giving evidence was very uneasy, there were a lot of questions which he had to think before he answered nor had he given direct evidence in answering questions." However in his written statement of finding at para. 12 concerning the appellant's demeanour he said, "I find that when he gave evidence in chief in the general issue he gave spontaneous immediate response to some (my emphasis) questions". This is contradictory to what he had found earlier.

9. In any event when a case turned upon the victim's word against the accused's version, the inherent probabilities of the versions put forward by each witness was a more valuable test than the demeanour of the witness. See R v Ng Wing-ming [1995] 1HKLR 65. In this case like Ng Wing-ming's case the learned magistrate had relied too heavily upon the appellant's demeanour.

10. In evaluating the evidence of PW1 (the main witness) the learned magistrate found her to be an honest and truthful witness. He went on to say "I did not believe, and found that impossible, as suggested. She made up evidence to set the Defendant up." With respect he took a wrong approach in evaluating the evidence. PW1 was a security officer. Being a security officer does not mean that it was impossible for her to make up evidence to set the appellant up. To say that is analogous to saying a policeman is incapable of framing a suspect. This is a non secutur.

11. For reasons stated above, it is unsafe to convict and the appeal is allowed. Conviction quashed and sentence set aside.

12. I do not order a retrial at the request of the prosecution because the offence is not a serious one and a non custodial sentence is likely in the event of a conviction. Further, I am informed that the witness for the appellant has left Hong Kong and cannot be traced.