THE QUEEN v. HO CHEUNG YUEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 417 OF 1990

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BETWEEN

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Reasons for Judgment

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1. On the 6th February, 1990, the appellant (a serving police officer) was convicted of theft, contrary to section 9 of the Theft Ordinance, Cap. 201.

2. The particulars of charge alleged that "Ho Cheung-yuen, you are charged that on the 26th day of September, 1989, at outside Room 521 and 526, Block 32, Wong Tai Sin Lower Estate, Kowloon, in Hong Kong, you did steal one brassiere and one lady's underpant, the property of Chan Suk-kam."

3. In a trial that lasted some 4 days with judgment being reserved to a 5th day, the prosecution called 10 witnesses, 8 of whom were civilians and 2 police officers. However, among all the witnesses, there was only one of them, namely the first prosecution witness, Tse Wai-ka, who allegedly witnessed the appellant removing the items alleged to have been stolen from a wire hanging outside the unit on the 5th floor. Furthermore there was evidence that the appellant was assaulted by some of these witnesses including TSE and the fourth prosecution witness Ho Wing-kin and it was the defence case that the appellant was framed in order that these witnesses could escape their own crime.

4. It was the appellant's defence at the trial that he merely went to Block 32 of the Wong Tai Sin Lower Estate to look for a gentleman called Tsang Kam-cheung who resided there. He sought to produce the red cloth with names of guests used at his wedding in 1974 and pointed to a name in the left middle of the red cloth and said that was the signature of the said Tsang Kam-cheung. He explained that he visited Tsang because his family had discussed the Possibility of immigration to Taiwan and he knew that Tsang had friends and relatives in Taiwan so he went to visit Tsang to obtain from him information about Taiwan. He had also said that he visited Tsang in Wong Tai Sin Lower Estate when he was very young, but on the day of the visit he could not remember the room number and the floor number. He denied that he ever stole the items referred to in the charge. Even PW1 admitted in cross-examination that the appellant told him at the scene that he had come up there to look for a friend.

5. The only grounds of appeal which Mr McLanachan proceeded with at the hearing of the appeal were grounds 2 and 4 as follows :-

6. The record of proceedings shows that after the Magistrate reserved his decision having heard the final submissions, and after he resumed hearing, an application was made on behalf of the appellant for leave to introduce fresh evidence to the court before the court delivered its decision.

7. The record shows the application as follows :-

8. The learned Magistrate then went on to give his decision.

9. It appears that neither the learned Magistrate nor the defence counsel was aware that the Magistrate had a discretion at that stage to allow the defence to re-open their case to put in such a list or to cross-examine on it. Both counsel for the appellant and for the respondent before me accept that he had such a discretion. Indeed there can be no doubt about it.

10. Exactly what was contained in the list was not revealed because it appears that the counsel for the defence changed his mind after the short adjournment and elected not to seek to re-open his case. If his original wedding list of guests had been retained and was available for production in court, it would in my view have been admissible as real evidence and would have lent some support to the appellant's defence. The wedding list has not been produced at the appeal but Miss Evena Chan who appeared for the respondent on the appeal conceded that it would be likely that a wedding list of guests would also bear their addresses. It would therefore appear that a material irregularity occurred during the course of the trial when the defence counsel took the erroneous view that he could not admit the evidence before the court. That evidence would have been particularly significant in view of the fact that the 6th prosecution witness Tsang Kam Cheung was believed in evidence when he said that he did not know the appellant and had never heard of any person by the name of Ho Sheung-kit (the appellant's father), and who had testified in cross-examination that he had not been invited to the wedding of Ho Sheung Kit's son, namely the appellant.

11. This is a case that has given me a great deal of concern. Having read through the record many times, it does appear that there are numerous discrepancies between the evidence of the various prosecution witnesses and between their pretrial statements and their evidence. Furthermore, the evidence as to the circumstances in which the appellant, a serving police officer, should have immediately admitted that he had stolen the items in question does not somehow ring true. His explanation for his presence at Block 32 does not appear to have been believed, partly because the Magistrate accepted the evidence of the 6th prosecution witness. The appellant's story of how he went to that block to locate Mr Tsang and how he went up to the 6th floor and then came down to the 5th floor certainly does not appear beyond the bounds of possibility. If there had been proof that a person of Mr Tsang's name with that address had been invited to the wedding, it would have substantially supported the defence story told by the appellant.

12. Another matter of concern was that although the Magistrate stated :

"I have carefully assessed the evidence of each witness and also the evidence as a whole."

it appears that he may not have given the evidence the careful scrutiny required of him. At page 97 of the record he said :

"As to PW7 and PW9, I could not see from their evidence both in-chief and under cross-examination, why they had to be called at all. They added nothing to the case of the prosecution case and there was very little that came out from cross-examination. I gave no weight to their evidence in coming to my decision because they did not appear to me to be reliable witnesses."

In fact, PW9 was not cross-examined at all. I appreciate that the Magistrate placed no importance upon his evidence but it did concern me that he expressed himself in the way he did and it raised a question mark over his approach to the evidence as a whole.

13. In the circumstances, I had a lurking doubt in this case and was of the opinion that in all the circumstances the conviction was unsafe and unsatisfactory.

14. I ordered that there should be a new trial and the appellant be tried de novo before another Magistrate.